Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCU224591, Patrick J. O’Hara, Judge.
Charles David Williams, Jr., in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
HILL, J.
Plaintiff appeals from an order denying his request for entry of a default judgment against defendant. We conclude the order is not a final appealable order and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendant for legal malpractice. The complaint alleged defendant represented plaintiff as appointed counsel in a criminal proceeding filed against plaintiff, which resulted in plaintiff’s incarceration. It alleged defendant was negligent in his representation of plaintiff, and plaintiff was damaged as a result. Plaintiff prayed for $1,000,000 in compensatory and punitive damages.
Defendant was served by substituted service and failed to file a responsive pleading. On February 9, 2008, plaintiff requested, and the court entered, defendant’s default. On March 17, 2008, plaintiff filed a second request for entry of default, which also requested entry of a court judgment. Entry of default was denied because default had already been entered. In a subsequent explanatory letter, the clerk advised plaintiff that judgment had not been entered because “Plaintiff must prepare a judgment and submit it to the court.” The clerk provided plaintiff a Judicial Council form for the judgment.
Plaintiff filled out the judgment form and submitted it to the court; the court denied entry of judgment without prejudice, stating that plaintiff “must still prove up his case.”
On June 3, 2008, plaintiff filed a second request for entry of a default judgment. He submitted two declarations in support, explaining the circumstances of his conviction and the shortcomings in defendant’s representation of him. On July 1, 2008, the court entered a formal order denying entry of default judgment without prejudice. The order explained, with citation of authority, that even if defendant had defaulted, judgment could not be entered until plaintiff proved he was injured by defendant, “by proving his innocence in the underlying criminal case by some type of postconviction relief.” Plaintiff appeals the denial of his request for entry of a default judgment.
DISCUSSION
“A trial court’s order is appealable when it is made so by statute.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).) Generally, Code of Civil Procedure section 904.1 identifies those orders that are appealable. Plaintiff contends the order denying entry of a default judgment in this case is appealable pursuant to section 904.1, subdivision (a)(2) or (4).
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
An appealable judgment or order is a jurisdictional prerequisite to an appeal. If there is doubt about the appealability of an order, the court must raise the issue. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) At the court’s request, plaintiff submitted a letter brief addressing whether the order appealed from is appealable and, if not, whether the appeal should be dismissed.
Section 904.1, subdivision (a)(2), makes orders made after a final judgment appealable. No judgment has been entered in this case. The order denying entry of a default judgment is not an order made after judgment, and therefore is not appealable pursuant to section 904.1, subdivision (a)(2).
Section 904.1, subdivision (a)(4), authorizes an appeal from “an order granting a new trial or denying a motion for judgment notwithstanding the verdict.” Plaintiff seems to contend the order in this case is appealable as an order denying a motion for judgment notwithstanding the verdict. A judgment notwithstanding the verdict may be granted in a jury trial when the jury returns a verdict that is not supported by substantial evidence or by reasonable inferences to be drawn therefrom. (§ 629; Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 788.) There has been no jury trial in this case and no verdict. The order from which plaintiff is appealing is not an order denying a motion for judgment notwithstanding the verdict, and is not appealable pursuant to section 904.1, subdivision (a)(4).
An order denying entry of a default judgment is not listed in any of the other categories of appealable orders set out in section 904.1.
Generally, intermediate rulings of the trial court may not be appealed until final resolution of the case. (Griset, supra, 25 Cal.4th at p. 697.) “‘The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.’ [Citations.]” (Ibid.)
As the trial court pointed out, a legal malpractice action by an individual against the attorney who represented him in criminal proceedings requires proof of innocence and exoneration. “Factual innocence is an element of a legal malpractice cause of action stemming from representation in a criminal action.” (Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45. “[A] plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case – for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief – as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1205.) When a plaintiff requests entry of a default judgment, if the complaint states a cause of action and the plaintiff presents evidence that establishes a prima facie case, the trial court must render a judgment for the amount that appears from the evidence to be just. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.) Thus, contrary to plaintiff’s contention, the court did not have a ministerial duty to enter judgment upon his request; plaintiff was required to present evidence establishing a prima facie case of legal malpractice before judgment could be entered.
The trial court’s order denying without prejudice plaintiff’s request for entry of a default judgment was an intermediate order that did not finally dispose of any issue. It was not a final determination that plaintiff is not entitled to a judgment against defendant. The order was made without prejudice, and plaintiff may renew his request for entry of judgment when he can demonstrate the validity of his malpractice claim, including the element of actual innocence. Plaintiff has represented that his habeas corpus proceeding is still pending.
Because plaintiff has appealed from a nonappealable order, we must dismiss his appeal. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.