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Simpson v. Nelson

California Court of Appeals, Sixth District
Apr 4, 2008
No. H031710 (Cal. Ct. App. Apr. 4, 2008)

Opinion


INEZ SIMPSON, et al., Plaintiffs and Appellants, v. DAN NELSON, et al., Defendants and Respondents. H031710 California Court of Appeal, Sixth District April 4, 2008

NOT TO BE PUBLISHED

Santa Clara County, Super. Ct. No. CV059109

Rushing, P.J.

Appellants Inez Simpson and Donald Simpson appeal from an order setting aside default and default judgment against respondent Dan Nelson. While the appeal was pending in this court, respondent filed a motion to dismiss the appeal as taken from a nonappealable order. Appellants have not opposed the motion. Finding the motion meritorious, we will dismiss the appeal.

Factual and Procedural Background

Appellants sued Dan Nelson and Art & Imagination, LLC. for moneys owed on a delinquent promissory note. While settlement negotiations were ongoing, appellants successfully secured a default and a default judgment against both defendants. Both the default and default judgment were set aside, and defendants answered the complaint and filed a cross-complaint. Subsequently, the trial court again entered default and default judgment; this time only against the individual defendant, Dan Nelson for failure to personally appear. After Mr. Nelson successfully moved to set aside the default and default judgment, appellants filed a timely notice of appeal from that order.

While the appeal was pending in this court, the respondents filed a motion to dismiss the appeal as taken from a nonappealable order.

Discussion

In their motion, respondents contend that the order setting aside default and default judgment is not currently appealable because the cross-complaint is still pending. Therefore, there is no final judgment in the case. Appellants do not oppose the motion.

Appellate jurisdiction is limited to those judgments and orders described in Code of Civil Procedure section 904.1. In order to be appealable, a judgment must be final. (Code of Civ. Proc., § 904.1, subd. (a).) Where a cross-complaint remains pending between the parties, there is no final judgment on all issues, and no appeal may lie. (California Dental Assn. v. California Dental Hygienists’ Assn. (1990) 222 Cal.App.3d 49, 59.) Here, apparently the cross-complaint is still pending in the trial court. As there is no final judgment, the appeal must be dismissed as taken from a nonappealable order.

Disposition

The appeal is dismissed as taken from a nonappealable order.

WE CONCUR: PREMO, J., ELIA, J.


Summaries of

Simpson v. Nelson

California Court of Appeals, Sixth District
Apr 4, 2008
No. H031710 (Cal. Ct. App. Apr. 4, 2008)
Case details for

Simpson v. Nelson

Case Details

Full title:INEZ SIMPSON, et al., Plaintiffs and Appellants, v. DAN NELSON, et al.…

Court:California Court of Appeals, Sixth District

Date published: Apr 4, 2008

Citations

No. H031710 (Cal. Ct. App. Apr. 4, 2008)