Opinion
E033006.
7-23-2003
MARIO USQUIANO, Plaintiff and Appellant, v. DANIEL EREZ, Defendant and Respondent.
Mario Usquiano, in pro. per., for Plaintiff and Appellant. Law Offices of Jennifer J. Hasso-Najm and Jennifer J. Hasso-Najm for Defendant and Respondent.
The trial court entered a minute order, dismissing plaintiff Mario Usquianos complaint against defendant Daniel Erez. Two and a half years later, Usquiano filed a motion to vacate the dismissal, which the trial court denied. The trial court then entered a formal written dismissal order, from which Usquiano appeals.
We will hold that the minute order was not appealable, and, hence, the appeal from the formal dismissal order is timely. We will further hold, however, that Usquiano has failed to provide us with an record adequate to demonstrate error. Separately and alternatively, we will hold that, at least on the record we do have, the trial court properly denied the motion to vacate. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On July 21, 1998, Usquiano filed this action against Erez. (Usquiano also named, but apparently never served, a second defendant.) At that time, Usquiano was represented by attorney Barzin Barry Sabahat.
A hearing on an order to show cause regarding dismissal was set for September 30, 1999. On that date, none of the parties appeared. The trial court entered an unsigned minute order which provided: "There being no appearances/opposition: Court orders case dismissed with . . . prejudice."
On April 11, 2002 — i.e., more than two and a half years later — Usquiano filed a motion to vacate the dismissal. Although the motion itself has not been included in the appellate record, it apparently was brought under Code of Civil Procedure section 473. At the same time, Usquiano filed a substitution of attorney, replacing attorney Sabahat with attorney Emile M. Mullick. On May 8, 2002, after a hearing, the trial court denied the motion to vacate.
On October 29, 2002, Usquiano submitted a proposed formal written order of dismissal. On November 22, 2002, the trial court signed and entered this dismissal order.
On January 3, 2003, Usquiano filed a notice of appeal "from the dismissal of . . . the above-entitled action . . . ."
II
TIMELINESS OF THE APPEAL
Preliminarily, Erez argues that Usquianos notice to appeal was untimely because his time to appeal ran from either (1) the September 1999 minute order dismissing the case or (2) the May 2002 order denying the motion to vacate. We disagree.
Code of Civil Procedure section 581d, as relevant here, provides: "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes . . . ." Accordingly, an unsigned minute order is not an appealable judgment, even if it purports to dismiss an action. (Munoz v. Florentine Gardens (1991) 235 Cal. App. 3d 1730, 1731; Rios v. Torvald Klaveness (1969) 2 Cal. App. 3d 1077, 1079, 83 Cal. Rptr. 150.)
Moreover, precisely because there had been no previous appealable judgment, the trial courts order denying the motion to vacate was not appealable as an order after judgment. (Cf. Code Civ. Proc., § 904.1, subd. (a)(2); Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282, 153 P.2d 714; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.)
There was no appealable order or judgment until November 22, 2002, when the trial court signed and entered Usquianos proposed formal written order of dismissal. Usquianos notice of appeal from this judgment, filed on January 3, 2003, was therefore timely. (Cal. Rules of Court, rule 2(a).)
III
THE MOTION TO VACATE
Usquiano contends the trial court erred by denying his motion to vacate.
The appellate record does not include Usquianos motion to vacate, nor Erezs opposition, nor a reporters transcript of the hearing on the motion. Without these, we can hardly say the trial court erred. "An order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citation.]" (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718, 854 P.2d 1117, quoting In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal. Rptr. 797, 800 P.2d 1227.) Thus, "a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574, 224 Cal. Rptr. 664, 715 P.2d 624.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]. [Citation.]" (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) This is sufficient reason, even standing alone, to affirm the judgment.
Separately and alternatively, however, we believe the trial court could properly deny the motion. A motion for relief under Code of Civil Procedure section 473 must be brought within six months after entry of the challenged order or judgment. (Code Civ. Proc., § 473, subd. (b); Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981, 884 P.2d 126.) Usquiano failed to meet this deadline.
After the six-month statutory period has run, the trial court still has the inherent power to grant nonstatutory, equitable relief based on extrinsic fraud or mistake. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 139-140 [Fourth Dist., Div. Two].) An attorneys total abandonment of his or her client can constitute the necessary extrinsic fraud or mistake. (Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 204-206; County of San Diego v. Department of Health Services (1991) 1 Cal.App.4th 656, 664-665.) A party seeking nonstatutory equitable relief, however, still must show that he or she has acted with reasonable diligence. (In re Marriage of Damico (1994) 7 Cal.4th 673, 688, 872 P.2d 787; In re Marriage of Wipson (1980) 113 Cal. App. 3d 136, 143-144, 169 Cal. Rptr. 664.)
As far as this record reveals, Usquiano sought relief exclusively under Code of Civil Procedure section 473; he did not seek nonstatutory relief. Thus, the trial court did not abuse its discretion by failing to grant nonstatutory equitable relief.
In addition, on this record, the trial court reasonably could have found that Usquiano did not act with reasonable diligence. He did not seek relief for more than two and a half years after entry of the adverse order. The record contains no explanation for this delay. For this reason, too, we cannot say the trial court abused its discretion by denying the motion.
IV
DISPOSITION
The judgment is affirmed. Erez shall recover costs on appeal against Usquiano.
We concur: McKINSTER Acting P.J., KING J. --------------- Notes: Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21).