Filed 7/3/14 Nabors Internat. Finance v. Lawyers Aset Research Serv. CA2/8

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


NABORS INTERNATIONAL FINANCE,                                        B246444
INC.,
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. BC444218)

         v.

LAWYERS ASSET RESEARCH
SERVICE, LLC et al.,

         Defendants and Appellants.



         APPEAL from an order of the Superior Court of Los Angeles County.
Soussan G. Bruguera, Judge. Affirmed.


         Keiter Appellate Law and Mitchell Keiter for Defendants and Appellants.


         The David Firm, Henry S. David and Dana J. Meepos for Plaintiff and
Respondent.


                               ____________________________________
       We affirm an order denying a motion to set aside a default judgment that was
entered after the trial court struck the defendants’ answer for discovery failures.
                                           FACTS
       In August 2010, Nabors International Finance, Inc. (Nabors) filed an action
against Lawyers Asset Research Service, LLC (LARS)1 alleging that LARS had obtained
approximately $270,000 rightfully belonging to Nabors. In January 2011, Nabors filed
its operative first amended complaint alleging causes of action listed respectively as
follows: breach of written contract; money had and received; conversion; fraud;
fraudulent transfer; constructive fraudulent transfer; claim on behalf of creditors based on
third-party’s illegal distribution of debtor’s assets; claim on behalf of creditors for
improper distributions; and breach of fiduciary duty. Nabors’s action consisted of
allegations that LARS misused a limited power of attorney to get a state franchise tax
board to cancel a tax refund check payable to Nabors, and to issue a new check payable
to LARS. LARS then deducted a fee, the $270,000 noted above, for finding Nabors’s
“lost” or “unclaimed” or “abandoned” asset, and forwarded the remaining amount on to
Nabors. In February 2011, LARS answered the first amended complaint.
       On August 31, 2011, the trial court entered an order granting Nabors’s motion for
summary adjudication of issues on the first through third causes of action. The trial
court’s summary adjudication ruling became moot when, on December 13, 2011, the
court ordered LARS’s answer to be stricken as a terminating sanction for its failure to
comply with discovery orders, and entered LARS’s default.
       On December 13, 2011, the trial court entered a court judgment by default based
upon Nabors’s prove-up testimony and other evidence. On December 15, 2011, Nabors
served LARS with notice of entry of judgment, thereby beginning the 60 day period for
filing a notice of appeal from the default judgment. By our calculation, the time to file a
notice of appeal from the default judgment expired in mid-February 2012. LARS did not
file a timely notice of appeal from the default judgment.

1
       Our references to LARS include defendant Jules Walder, LARS’s founder.

                                               2
       On June 13, 2012, LARS filed a motion in the trial court for “mandatory relief”
from the default judgment pursuant to Code of Civil Procedure section 473 based upon
the alleged acts and omissions of its attorneys. On November 28, 2012, the trial court
denied LARS’s motion for relief from the default judgment.
       On January 25, 2013, LARS filed a notice of appeal that identified the judgment or
order from which it appealed as follows: “Denial of Code of Civil Procedure section 473
motion.” LARS’s notice of appeal identified the date of the judgment or order as
follows: “November 28, 2012.”
                                      DISCUSSION
I.     Summary Adjudication of Issues
       LARS’s opening brief on appeal includes extensive argument challenging the trial
court’s order of August 31, 2011 granting Nabors’s motion for summary adjudication of
issues on Nabors’s first through third causes of action. In its respondent’s brief, Nabors
argues that LARS’s appeal should be dismissed because LARS has not addressed the
merits of the order from which it appealed –– namely, the trial court’s order entered on
November 28, 2012 denying LARS’s motion to set aside the default judgment entered in
favor of Nabors based on LARS’s discovery failures. We agree with Nabors that
LARS’s appeal must be dismissed to the extent it seeks review of any issue beyond those
related to the order of November 28, 2012 denying its motion for relief from the default
judgment.
       Although a notice of appeal “must be liberally construed” in deference to the
public policy favoring review on the merits, it must still identify the judgment or order
being appealed. (Rule 8.100(a)(2).) The rule of liberal construction of a notice of appeal
does not permit appellate review of a judgment or appealable order where a notice of
appeal unambiguously evidences an intent to appeal from a different judgment or
appealable order. In other words, when the judgment or appealable order appealed from
is “clear and unmistakable” from the notice of appeal, the court of appeal is without
jurisdiction to liberally construe the notice of appeal and is without jurisdiction to review



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a non-appealed judgment or order. (Unilogic, Inc. v. Burroughs Corp. (1992) 10
Cal.App.4th 612, 624-625; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.)
       Here, LARS’s notice of appeal unambiguously and unmistakably sought review of
the trial court’s order of November 28, 2012, denying LARS’s motion for relief pursuant
to Code of Civil Procedure section 473 from the default judgment in favor of Nabors.
By no means can we liberally construe LARS’s notice of appeal to include the trial
court’s order granting summary adjudication of issues – made more than a year earlier --
on August 31, 2011. Thus, LARS cannot argue issues related to the trial court’s August
31, 2011 order, granting Nabors’s motion for summary adjudication of issues of its first
through third causes of action.
       Even if LARS’s notice of appeal could be construed to encompass a judgment or
order other than the order of November 28, 2012, denying LARS’s motion for relief from
the default judgment in favor of Nabors, we do not have jurisdiction to address any issue
concerning the court’s order of August 31, 2011, granting Nabors’s motion for summary
adjudication of issues. Although an order granting summary adjudication of issues may
be addressed on appeal from a final judgment (Jennings v. Marrale (1994) 8 Cal.4th 121,
127-128), in the current case LARS did not file a timely notice of appeal from the default
judgment in favor of Nabors. “The time for appealing a judgment is jurisdictional; once
the deadline expires, the appellate court has no power to entertain the appeal.” (Van
Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997)
15 Cal.4th 51, 56.) California Rules of Court, rule 8.104(a) provides that a notice of
appeal must be filed on or before the earliest of two dates, those being the 60th day after
the appellant was served with a document entitled “notice of entry” of the appealable
order or judgment, or the 180th day after entry of appealable order of judgment. Nabors
served notice of entry of judgment on December 15, 2011. LARS did not file a notice of




                                             4
appeal before the 60-day period expired in mid-February 2012. Accordingly, we do not
have jurisdiction to address any issues embodied within the judgment in favor of Nabors.2
II.    The Default Judgment
       LARS opening brief on appeal asserts that its “inability to comply with [Nabors’s]
oppressive and burdensome requests for discover do not entitle Nabors to recover.”
In this vein, LARS’s notes the general principle that the purpose of discovery is not to
provide a weapon for forfeiture or avoidance of a trial on the merits. (Citing, e.g.,
Fred Howland Co. v. Superior Court (1966) 244 Cal.App.2d 605, 610.) This is not our
summary of LARS’s argument; this is all there is. Assuming this is intended to be
LARS’s argument challenging the default judgment entered in favor of Nabors based on
LARS’s discovery failures, it is insufficient to warrant reversal of the judgment for a
number of reasons.
       First, to the extent that LARS’s is attempting to appeal from the default judgment
in favor of Nabors, LARS’s appeal is untimely and we do not have jurisdiction to address
the appeal.3 Second, an appealed judgment and order is presumed to be correct, and it is
an appellant’s burden to show error. (Mansell v. Board of Administration (1994) 30
Cal.App.4th 539, 545-546.) LARS’s undeveloped argument consisting of bald
statements and citations to general principles of law, without any discussion or showing
of the facts in the current case, and how those facts are applicable to the rules of law that
it cites, is simply not sufficient to show that the trial court committed error in entering the
default judgment in favor of Nabors.




2
        In light of our decision, we need not turn to the issue that the summary
adjudication ruling became moot when the trial court struck LARS’s answer and entered
its default.

3
      As we noted above, LARS’s notice of appeal was filed more than 60 days after
Nabors served notice of entry of the judgment.

                                               5
III.   The Order Denying LARS’s Motion for Relief from the Default Judgment
       LARS’s opening brief on appeal contains no significant argument concerning error
related to the trial court’s order of November 28, 2012 denying LARS’s motion for relief
from the default judgment in favor of Nabors. In the absence of an affirmative showing
of error concerning the order denying relief, the court’s order must be presumed to be
correct. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
                                    DISPOSITION
       The trial court’s order of November 29, 2012, denying LARS’s motion for relief
from the default judgment entered in favor of Nabors on December 13, 2011, is affirmed.
Respondents are awarded costs on appeal.




                                                       BIGELOW, P.J.

We concur:


                    FLIER, J.




                    GRIMES, J.




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