Opinion
C081093
02-09-2018
MAHIN MOGHADDAM, Plaintiff and Respondent, v. ANDREW MEGHDADI, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 164686)
Andrew Meghdadi appeals from the trial court's denial of his motion to set aside a default. He claims the trial court abused its discretion in rejecting his argument that the default should be set aside because of his mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473.)
Because Meghdadi filed his notice of appeal weeks before the default judgment was entered, he has appealed from a nonappealable order and we will dismiss the appeal. But even if we were to address the merits of his claim, Meghdadi would not be successful on appeal because he has not provided us with an adequate record to establish that the trial court abused its discretion.
BACKGROUND
In 2015, Mahin Moghaddam filed a complaint against Meghdadi alleging he failed to repay a $200,000 loan she made to him. Meghdadi did not file a timely answer, and at Moghaddam's request, default was entered against Meghdadi.
Meghdadi moved to set aside the default, submitting declarations stating he neglected to respond because he did not understand the legal process. He said he thought he could go to court and explain to a judge that he was not responsible for the claim. He believed the action was like a small claims action and he was taking the correct steps.
Moghaddam's son submitted a declaration in opposition to the motion to set aside default, stating that Meghdadi (his uncle) owned his own building company and had built hundreds of homes. Moghaddam's son said Meghdadi had been involved in many lawsuits, and any suggestion he is not sophisticated is false. The declaration also attached correspondence from Meghdadi acknowledging he owed Moghaddam money.
The trial court denied Meghdadi's motion to set aside the default. The trial court's order noted the date and time of the hearing and the appearances and then said: "The Court having reviewed the file, and having read the moving papers, opposition and reply and after hearing oral argument from both counsel herby [sic] denies the Motion of Defendant Andrew Meghdadi to set aside the default."
Meghdadi filed his appeal on December 30, 2015, but the default judgment was not entered until January 22, 2016.
DISCUSSION
Meghdadi claims the trial court abused its discretion in rejecting his argument that the default should be set aside because of his mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473.) Moghaddam counters that the appeal must be dismissed because Meghdadi filed his notice of appeal from a nonappealable order.
We agree with Moghaddam. An order denying a motion to vacate entry of default is not appealable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; see also Misic v. Segars (1995) 37 Cal.App.4th 1149, 1154 ["When a trial court grants a motion to vacate a default, an appeal does not lie in the absence of entry of a default judgment"].) Because Meghdadi filed his notice of appeal from a nonappealable order, it is appropriate to dismiss his appeal.
Although Meghdadi urges us to construe his notice of appeal as a premature notice of appeal from the subsequent judgment (see First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961), there are reasons why we should not do so in this case. Premature notices of appeal are addressed in California Rules of Court, rule 8.104(d): "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment. [¶] (2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." The problem here is that although Moghaddam's complaint specified a prayer for relief, her request for entry of default did not specify a judgment amount (she left those spaces blank), and the trial court did not specify a default judgment amount until after the notice of appeal was filed. Thus, the trial court had not yet "rendered" judgment, as required by California Rules of Court, rule 8.104(d), when the notice of appeal was filed.
However, even if we were to construe Meghdadi's notice of appeal as a premature notice of appeal from the subsequent judgment, the appellate record does not contain a reporter's transcript of any proceeding in the trial court, making this a "judgment roll" appeal. The party challenging the judgment bears the burden to provide an adequate record on appeal to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) " 'In a judgment roll appeal, every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. [Citation.] The sufficiency of the evidence to support the findings is not open to review. [Citation.]' [Citation.]" (Estate of Kievernagel (2008) 166 Cal.App.4th 1024, 1031.)
Thus, even if we were to consider the merits of Meghdadi's appeal, we would conclude he has failed to establish that the trial court abused its discretion.
DISPOSITION
The appeal is dismissed. Moghaddam is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
MAURO, J. We concur: HULL, Acting P. J. DUARTE, J.