        Filed 8/26/20 Bielous v. Ngai CA1/2
                NOT TO BE PUBLISHED IN OFFICIAL REPORTS
        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 This opinion has not
        been certified for publication or ordered published for purposes of rule 8.1115.


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                                 DIVISION TWO


   MICHAEL BIELOUS,
             Plaintiff and Respondent,
                                                                     A157990
   v.
   ANTHONY K. NGAI,                                                  (San Francisco County
                                                                     Super. Ct. No. CGC-18-565661)
             Defendant and Appellant.



        Plaintiff Michael Bielous obtained a default judgment against
defendant Anthony Ngai. Ngai appeals, contending that punitive damages
awarded as part of the judgment are not supported by substantial evidence.
Bielous has moved to dismiss the appeal on the ground that Ngai’s notice of
appeal was untimely. His motion is well taken. We therefore grant the
motion and dismiss the appeal.
                                                BACKGROUND
        Procedural Background
        On April 10, 2018, plaintiff Michael Bielous filed a complaint against
defendant Anthony Ngai for breach of contract, fraudulent inducement, and
promissory fraud relating to a $150,000 promissory note. The complaint was
served on Ngai on May 10, 2018.




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      On May 21, 2018, Ngai served a Code of Civil Procedure section 998
offer in the amount of Bielous’s contract damages, attorney fees, and interest
due on the promissory note.1 Bielous did not accept the offer, and Ngai
apparently failed to respond to the complaint, resulting in his default.
      A default judgment prove-up hearing was held on February 7, 2019.
That same day, the trial court entered a default judgment for Bielous that
included $450,000 in punitive damages. Bielous served notice of entry of
judgment the following day.
      On April 5, 2019—57 days after notice of entry of judgment—Ngai filed
a “Motion To Set Aside And Vacate Void Default Judgment.” The motion was
initially calendared for hearing on May 4, and then later continued to June
25 and again to July 9.
      On July 2, 2019, Ngai filed a notice of appeal. In light of this, the trial
court took Ngai’s motion to vacate the default judgment off calendar.
      Bielous’s Motion to Dismiss the Appeal
      On July 9, 2020, Bielous filed a motion to dismiss Ngai’s appeal. He
contends the appeal is untimely because the default judgment was entered on
February 7, 2019, and notice of entry of judgment was served on February 8,
but Ngai did not file his notice of appeal until July 2, well past the 60-day
deadline set forth in California Rules of Court, rule 8.104(a)(1)(B).2
      Bielous acknowledges Ngai’s April 5, 2019 motion to vacate the default
judgment. He also acknowledges that pursuant to rule 8.108(c), the filing of
a valid motion to vacate a judgment extends the timeframe for filing a notice
of appeal by 90 days. According to Bielous, however, in order to be valid, the
motion must be timely, and Ngai’s motion was untimely because it was not

      1   All statutory references are to the Code of Civil Procedure.
      2   All rule references are to the California Rules of Court.


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filed within 15 days of service of notice of entry of judgment, as required by
section 663a, subdivision (a)(2). Thus, Bielous concludes, Ngai’s motion to
vacate the default judgment did not extend the 60-day deadline set forth in
rule 8.104(a)(1)(B) for filing notice of appeal.
       Ngai opposes Bielous’s motion, contending his notice of appeal was
timely.
                                 DISCUSSION
       Pursuant to rule 801.4(a)(1)(B), notice of appeal must be filed within 60
days of notice of entry of judgment. Bielous served notice of entry of
judgment on February 8, 2019. Accordingly, absent an applicable extension,
the last day for Ngai to file his notice of appeal was April 9. He did not file it,
however, until July 2. This would be untimely unless Ngai’s motion to vacate
the judgment extended the deadline for filing the notice. We conclude it did
not.
       As applicable here, rule 8.108(c)(2) provides, “If, within the time
prescribed by rule 8.104 to appeal from the judgment, any party serves and
files a valid notice of intention to move—or a valid motion—to vacate the
judgment, the time to appeal from the judgment is extended for all parties
until” 90 days after the motion is filed. In order to be “valid,” the motion
must be timely. (See, e.g., King v. Wilson (1950) 101 Cal.App.2d 242, 243
[notice of intention to move for a new trial not filed within the applicable time
limit is not a valid notice].) And in order to be timely, a notice of intention to
file a motion to vacate a judgment, or the motion itself, must be filed within
15 days of service of notice of entry of judgment—in this case, on or before
February 25. (§ 663a, subd. (a)(2) [a party must file a notice of intention to
file a motion to set aside and vacate a judgment “[w]ithin 15 days of the date
of . . . service upon him or her by any party of written notice of entry of



                                         3
judgment”].) Ngai’s April 5 motion to vacate was filed well past this deadline
and was thus not a “valid” motion that would extend his time for filing a
notice of appeal.
      Ngai disputes that the 15-day time limit set forth in section 663a
applied to his motion. In his words, section 663a “is simply not applicable to
the case at bar [because] a defaulting defendant ‘is out of court’ and ‘cannot
move for a new trial . . . .’ ” By its express terms, however, section 663a
applies to a motion to set aside a judgment. The statute does not contain
language exempting from its scope a motion by a defaulting defendant, and
Ngai cites no case construing section 663a as inapplicable to a default
judgment.
      Additionally, current law suggests that a defaulting defendant can in
fact move for new trial on the ground that the trial court awarded excessive
damages. (See, e.g., Siry Investment, L.P. v. Farkhondehpour (2020) 45
Cal.App.5th 1098, 1128–1132, review granted July 8, 2020, S262081; Misic v.
Segars (1995) 37 Cal.App.4th 1149, 1154; Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2020) ¶ 5:477 [§ 657, subds.
(5) and (6) authorize a defendant in default to “attack the default judgment in
the trial court by motion for new trial on the ground of ‘excessive or
inadequate’ damages or because ‘the verdict or other decision is against law”];
but see Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155
Cal.App.3d 381, 385–386 [stating in dicta that a defendant against whom a
default has been entered “ ‘cannot thereafter’ ” move for a new trial], italics
added.)
      In any case, whether the proper method for seeking the trial court’s
reconsideration of the default judgment was a section 663a motion to vacate
the judgment or a section 657 motion for new trial, Ngai had 15 days from



                                        4
notice of entry of judgment to bring such a motion. (§§ 659, subd. (a)(2),
663a.)
      Despite the foregoing, Ngai asserts that his motion to vacate was
timely because, in accordance with rule 8.108(c), he filed it on April 5, 2019,
which was within the 60-day time period to appeal prescribed by rule 8.104.
In urging this result, Ngai apparently reads rule 8.108(c) as if it provides that
a motion to vacate a judgment can be filed within the normal time to appeal
the judgment, in which case the time to appeal is extended. That is not what
the rule says, however, and such a reading disregards section 663a, which
expressly provides 15 days from notice of entry of judgment for filing such a
motion. In other words, rule 8.108(c) itself does not set forth the time frame
for filing the motion to vacate (that is set forth in section 663a), but rather
provides that a valid motion to vacate filed within the 60-day window for
filing a notice of appeal extends the time to appeal the judgment. But the
motion must still be valid, which requires that it be timely under the
statutory section governing such motions, i.e., section 663a.
      Ngai also asserts an alternative theory as to why his motion to vacate
was timely: the default judgment is void and, as such, his motion to vacate it
could be filed at any time. As he reasons, his appeal does not attack the
entire default judgment, instead challenging only the $450,000 punitive
damages award “as excessive and void and ‘beyond the power of the court to
grant’, as a matter of law, as unsupported by substantial evidence as to his
financial condition and ability to pay . . . .” He contends a default judgment
containing a punitive damages award that is unsupported by substantial
evidence is void and thus “can be attacked at any time.” This is incorrect.
While a “judgment void on its face . . . is subject to collateral attack at any
time” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228,



                                        5
1239), only certain defects render a judgment void. Such defects include lack
of subject matter jurisdiction, lack of personal jurisdiction, lack of notice of
the proceedings, improper service of summons, default entered without
service on defendant, and a default judgment exceeding the amount
demanded in the complaint. (Weil & Brown, Cal. Practice Guide, supra,
¶ 5:485.) Ngai cites no authority suggesting that a default judgment
unsupported by sufficient evidence is a defect that renders the judgment void,
and in fact his cited authorities indicate otherwise. (See Farmers &
Merchants Trust Co. v. Vanetik (2019) 33 Cal.App.5th 638, 647–650
[reversing the trial court’s award of punitive damages as unsupported by
substantial evidence, with no discussion of the judgment being void]; Kelly v.
Haag (2006) 145 Cal.App.4th 910, 916–920 [same]; Baxter v. Peterson (2007)
150 Cal.App.4th 673, 678–681 [same].)
      In sum, the rule 8.108(c)(2) 90-day extension for Ngai to file his notice
of appeal did not apply here because Ngai did not file a timely motion to
vacate the judgment or for new trial. Accordingly, his notice of appeal was
due to be filed within 60 days of notice of entry of judgment, or by April 9,
2019. Because he did not file his notice of appeal until July 2, the notice was
untimely. We therefore lack jurisdiction to consider his appeal (Van Beurden
Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997)
15 Cal.4th 51, 56), and the appeal must be dismissed.
                                 DISPOSITION
      Bielous’s motion to dismiss the appeal is granted. The appeal is hereby
dismissed. Bielous shall recover his costs on appeal.3




      3In light of the dismissal, Ngai’s request for judicial notice filed on July
2, 2020, is denied as moot.

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                                _________________________
                                Miller, J.


WE CONCUR:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A157990, Bielous v. Ngai




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