Filed 9/22/14 Franklin & Seidelmann v. Chao CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



FRANKLIN & SEIDELMANN, INC.,                                         D065195

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. 37-2012-00091628-
                                                                     CU-BC-CTL)
DAVID J. CHAO et al.,

         Defendants and Appellants.


         APPEAL from an order of the Superior Court of San Diego County, Richard E.L.

Strauss, Judge. Appeal dismissed.



         Olins Riviere Coates & Bagula, Mark S. Bagula, Russell F.A. Riviere and Aminta

C. Raffalovich for Defendants and Appellants.

         The Grant Law Firm, Miles D. Grant and Alexander J. Kessler for Plaintiff and

Respondent.

         David J. Chao, M.D. (Dr. Chao), and David J. Chao, M.D., Inc. (Chao, Inc.)

(together, Defendants), attempt to appeal from an order denying their statutory motion to
vacate orders entering their defaults (Order) in the underlying action filed by Franklin &

Seidelmann, Inc. (Plaintiff). However, the Order is not an appealable order, and

Defendants did not appeal from the related judgment. Thus, we lack jurisdiction and

must dismiss the appeal.1

                               PROCEDURAL HISTORY

       In February 2012, Plaintiff filed the underlying breach of contract complaint

against Oasis MSO, Inc., individually and doing business as Oasis Sports Medical Group,

Inc. Because Oasis's involvement does not affect the jurisdictional issue on which we

decide this appeal, we will omit further mention of Oasis. In June 2012, Plaintiff filed a

first amended complaint against Defendants.

       Following Plaintiff's requests, the clerk entered Dr. Chao's default on August 3,

2012, and Chao, Inc.'s default on August 31, 2012.

       By motion and supporting documents filed October 7, 2013, Defendants requested

an order setting aside the defaults and granting leave to defend the action pursuant to

Code of Civil Procedure section 473.5. Plaintiff filed written opposition to Defendants'

motion, and Defendants filed written reply to Plaintiff's opposition.




1     We requested supplemental briefing on the jurisdictional issue. (Gov. Code,
§ 68081.) We received and have considered a response from Defendants.

                                             2
       Two days after Defendants had filed their motion, on October 9, 2013,2 the court

filed a default judgment, awarding Plaintiff $106,983.10 against Defendants. On

November 5, 2013, Plaintiff gave Defendants written notice of entry of the judgment.

       Meanwhile, also on November 5, 2013, the court heard oral argument on

Defendants' motion to vacate the entries of default, confirmed the tentative ruling and

denied the motion.

       Defendants timely appealed from the Order by notice filed January 3, 2014.

                                        ANALYSIS

       Appellate courts have jurisdiction over a direct appeal, like the present one, only

where there is an appealable order or judgment. (Griset v. Fair Political Practices Com.

(2001) 25 Cal.4th 688, 696.) "A trial court's order is appealable when it is made so by

statute." (Ibid.; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51

Cal.4th 1, 5 ["The right to appeal is wholly statutory."], citing Code Civ. Proc., § 904.1.)

       When the motion to vacate the default is denied before entry of the default

judgment, "the order denying the motion to vacate the default is not independently

appealable," but rather may be reviewed only "on an appeal from the judgment."

(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The issue here is whether we have

jurisdiction to review entry of the default when the denial of the motion to vacate the




2      Plaintiff had submitted the evidence and points and authorities in support of the
default judgment almost 10 months earlier in December 2012.

                                              3
default occurs after entry of the default judgment and there is no appeal from the

judgment.

       Without mentioning appellate review of the judgment, Defendants gave notice that

they were appealing only from an "order in this case, which was entered on . . .

November 5, 2013" (i.e., the Order), further identifying it as "[a]n order after judgment

under Code of Civil Procedure section 904.1[, subdivision ](a)(2)." However, not every

postjudgment order that follows a final appealable judgment is appealable. (Lakin v.

Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin).) For a postjudgment

order to be appealable, it must meet two additional prerequisites: (1) "the issues raised

by the appeal from the order must be different from those arising from an appeal from the

judgment"; and (2) " 'the order must either affect the judgment or relate to it by enforcing

it or staying its execution.' " (Id. at pp. 651-652.) Assuming, without deciding, that the

judgment here was appealable, the Order does not meet either of these requirements for

an appealable postjudgment order.

       With regard to the first condition, if there were no requirement that new issues be

presented in the postjudgment order, then an undesired result would be to " 'allow[] two

appeals from the same ruling' " — one appeal from the judgment and a second appeal

from the postjudgment order. (Lakin, supra, 6 Cal.4th at p. 651.) Here, Defendants

contend that an appeal from the default judgment would have raised only the issue

"whether the trial court erred in entering default judgment," whereas this appeal from the

Order "is limited to the issue of whether notice [of the first amended complaint] was

properly effectuated on [Defendants] and whether the court lacked jurisdiction over

                                             4
[Defendants]." Although presumably the ultimate relief Defendants seek is to vacate the

judgment, in either appeal the only issue to be decided is whether the trial court erred in

entering Defendants' defaults. Therefore, the first condition is not satisfied.

       With regard to the second condition, the judgment directed Defendants to pay

Plaintiff $106,983.10, and the Order denied Defendants' request to vacate the defaults

that preceded the judgment. Thus, the Order here " 'neither added to nor subtracted from

the relief granted in the judgment, nor did [it] adjudicate any rights or establish any

liabilities' " of the parties. (Lakin, supra, 6 Cal.4th at p. 654.) Pragmatically, even if the

Order were reversed — and we neither decide nor imply that it should be — Defendants

would not receive the ultimate relief they want (that the judgment be vacated), because

the judgment would still be in effect and enforceable. Regardless what happens to the

Order, the judgment filed October 9, 2013, is final and no longer subject to appellate

review. (See Cal. Rules of Court, rule 8.104(a)(1) [outside limit to appeal is 180 days

after entry of judgment].)

       Defendants argue that the Order is independently appealable as a special order

after a judgment on a statutory motion for relief.3 Defendants' authorities are inapposite,

however, because each case on which Defendants rely satisfies the two Lakin

requirements, in that each involved a postjudgment motion directed to an existing final



3      Defendants' authorities mention only Code of Civil Procedure section 473 as the
basis of such a statutory motion. We will assume, without deciding, that the motion
Defendants brought under Code of Civil Procedure section 473.5 is also such a statutory
motion.

                                               5
judgment. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1134 (Shapiro) ["motion to

set aside the default and default judgment"]; Doppes v. Bentley Motors, Inc. (2009) 174

Cal.App.4th 1004, 1006 (Doppes) ["motion to set aside the judgment"]; Don v. Cruz

(1982) 131 Cal.App.3d 695, 698 (Don) [" 'motion to vacate and set aside default and

judgment thereon' "].) Here, in contrast, as established ante, the Order fails to satisfy the

Lakin requirements, in that the Order followed from a prejudgment motion filed at a time

before a judgment existed and, thus, was not directed to an existing judgment.

       We are aware of our obligation to "liberally construe[]" the notice of appeal. (Cal.

Rules of Court, rule 8.100(a)(2); see In re Joshua S. (2007) 41 Cal.4th 261, 272.)

However, where a notice of appeal unambiguously references a specific document and

fails to mention another, the notice is inadequate to allow review of the other unspecified

document. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220

Cal.App.3d 35, 46-47 [no jurisdiction to review postjudgment order for fees where notice

of appeal unambiguously identified only the judgment]; Shiver, McGrane & Martin v.

Littell (1990) 217 Cal.App.3d 1041, 1045 ["Despite the rule favoring liberal

interpretation of notices of appeal, a notice of appeal will not be considered adequate if it

completely omits any reference to the judgment being appealed."].)4 Accordingly, here,

because the notice of appeal unambiguously identifies only the Order and fails to mention



4       Uva v. Evans (1978) 83 Cal.App.3d 356, also cited by Defendants, did not involve
a liberal construction of the notice of appeal, since there (unlike here) the
defendant/appellant's notice expressly identified the judgment that was entered after the
defaults were taken. (Id. at p. 360.)

                                              6
the judgment, we are precluded from applying the doctrine of liberal construction in order

to save an appeal from the judgment.5

       We are not unsympathetic to Defendants' current inability to obtain appellate

review of the Order, arguably in part due to the delay of the superior court in acting on

the defaults and entering judgment. However, given that Defendants and their counsel

received notice of entry of the judgment on November 5, 2013, and filed their notice of

appeal on January 3, 2014, had they identified the judgment in the notice, they could have

timely preserved their right to appellate review of both the validity of the entries of

default and its effect on the judgment. Indeed, Defendants essentially concede their error

by acknowledging that the Order "can be reviewed on an appeal from the judgment" and

then suggesting that their "appeal is from the default judgment entered on October 9,

2013, notice of which was served on November 5, 2013." In fact, however, Defendants'

appeal is only from the Order and not from the judgment.




5       Even if the notice of appeal had generically described the results of the motion
rather than identifying the Order by date, we still could not construe the notice to include
an appeal from the judgment, because the motion did not seek any relief related to the
judgment — unlike the authorities on which Defendants rely. (Shapiro, supra, 164
Cal.App.4th 1128, [motion to set aside judgment]; Doppes, supra, 174 Cal.App.4th 1004,
[motion to set aside judgment]; Don, supra, 131 Cal.App.3d 695, [motion to vacate and
set aside judgment].)
                                              7
                                     DISPOSITION

      The appeal is dismissed for lack of jurisdiction.



                                                          IRION, J.

WE CONCUR:



BENKE, Acting P. J.



MCDONALD, J.




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