Filed 2/7/22 Nguyen v. Trinh CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Dismissed.

Frank Trinh, in pro per., for Defendant and Appellant.

The Law Offices of John D. Trieu and John D. Trieu for Plaintiffs and Respondents.

__________________________________

Defendant and appellant Frank Trinh appeals from a default judgment entered in favor of Minh Nguyen and a default judgment entered in favor of Phien Pham and Oai Tieu in related employment actions based on wage and hour violations.[1] Frank’s notice of appeal was filed more than 60 days after he was served with file-stamped copies of the judgments, and the time to appeal was not extended under rule 8.108(c) of the California Rules of Court.[2] Therefore, we dismiss the appeal as untimely.

FACTUAL AND PROCEDURAL BACKGROUND

Legal Proceedings Initiated

Nguyen filed a complaint on February 11, 2016, and a first amended complaint on April 26, 2016, alleging wage and hour violations against Canyon Swiss, Inc. and Nhan Trinh (the Nguyen action). On July 29, 2016, the Prosperous Law Group, acting on behalf of Canyon Swiss and Nhan, filed an answer to the first amended complaint.

On November 18, 2016, Nguyen filed an amendment to the complaint substituting Frank in place of Doe 1. That same day, Pham and Tieu filed a complaint against Canyon Swiss, Nhan, and Frank alleging similar wage and hour violation claims (the Pham action).

On February 15, 2017, the cases were related, but not consolidated. The Nguyen action was designated as the lead case. Nhan and Frank, representing themselves and purporting to act on behalf of Canyon Swiss, filed a case management statement on February 21, 2017. On March 2, 2017, Prosperous Law Group filed a motion to be relieved as counsel for Canyon Swiss and Nhan. On March 10, 2017, Frank’s default was entered in the Nguyen action. On April 7, 2017, the trial court granted Prosperous Law Group’s motion to be relieved as counsel for Canyon Swiss and Nhan.

On May 30, 2017, Frank, representing himself, filed a “Statement to Reject All Plaintiff’s Complaints” which discussed efforts to obtain representation for Canyon Swiss, as well as “defending points” to various allegations and claims of the complaint. The document also responded to a motion for leave to file a second amended complaint and a motion to compel further responses to requests for production of employee records.

Operative Second Amended Complaint

With the court’s permission, Nguyen filed a second amended complaint on June 7, 2017, against seven defendants, including Frank, alleging claims for wage and hour violations, as well as to void the transfer of assets. The second amended complaint was deemed filed and served as of June 2, 2017. A second amended complaint was filed in the Pham action alleging similar claims against the same seven defendants. Nguyen filed proofs of service showing that Nhan and Frank were electronically served with the second amended complaint on June 6, 2017.

Defaults were entered in both cases on August 11, 2017, against all defendants, including Frank. On September 18, 2017, Nhan and Frank, representing themselves and purportedly on behalf of Canyon Swiss, filed a motion to set aside the defaults and any judgment thereon taken against them. The motion was made pursuant to Code of Civil Procedure section 473, based on mistake, inadvertence, surprise, and excusable neglect. It referred to an attached declaration for a description of the conduct supporting the motion. A single declaration was attached, attributed to Nhan, Frank, and Canyon Swiss. The declarants explained their reason for failing to file a timely response by referring to a discovery dispute about the production of documents. Neither the motion, nor the declaration described any conduct constituting mistake, inadvertence, surprise, or excusable neglect. No proposed answer was attached to the motion.

On October 5, 2017, Nguyen filed a request for entry of a default judgment with supporting declarations and documents. On October 12, 2017, Nguyen, Pham, and Tieu filed a joint opposition to the motion to set aside the defaults and default judgments. The plaintiffs argued that no proposed answer or other responsive pleading had been filed with the moving papers. In addition, the defendants had not made any showing of mistake, inadvertence, surprise, or excusable neglect. Furthermore, the corporate defendant Canyon Swiss was prohibited from self-representation, as the court had previously explained to Frank and Nhan. In addition, before seeking entry of defaults, the plaintiffs had advised the defendants that their answers were due.

The trial court entered a default judgment on October 17, 2017, in favor of Nguyen against all defendants, including Frank, in the amount of $96,319. Another default judgment was entered the same day against the same defendants in favor of Pham and Tieu.

A hearing was held on the motion to set aside the default and default judgment on October 25, 2017. No reporter’s transcript has been provided on appeal. In a minute order, the trial court denied the motion to set aside the default and default judgment because the moving parties failed to articulate any mistake, inadvertence, surprise, or excusable neglect. In addition, they failed to attach a proposed responsive pleading. Also, Canyon Swiss, as a corporation, could not file the motion without an attorney of record.

On March 28, 2018, Frank and Nhan filed a notice of appeal, individually and on behalf of Canyon Swiss. The notice of appeal listed the case numbers of both actions and stated the appeal was taken from the default judgment entered on October 17, 2017. They also appealed from a notice of court ruling concerning the issuance of a bench warrant for Frank’s arrest and a debtor’s examination set for April 3, 2018. Canyon Swiss’s appeal was ultimately dismissed for failing to serve and file notice of representation, and Nhan’s appeal was dismissed for failure to file a case information statement.

Additional Proceedings in Trial Court and Appellate Court

On April 2, 2018, Frank filed a 47-page “rejection” of the default judgment, with supporting documents. On April 6, 2018, Frank, Nhan, and individual defendant James Ngo filed an ex parte motion to set aside the default judgment under Code of Civil Procedure section 473. They stated that they were under the impression that a response had been filed in the action by their previous counsel. The moving parties provided substantially similar declarations, each stating that he was not aware the prior counsel did not file an answer to the complaint and he was under the impression that his interest was protected by the filing of an answer. Each unknowingly and inadvertently did not check with the court about an answer having been filed based on representation of counsel. Each did not know the legal process and was not readily familiar with the manner in which one verifies the filing of documents with the court. Failure to file a timely response was not deliberate, but rather based upon mistake and inadvertence and due to his lack of information about the legal process. Based on this, they asked the court to set aside the default and default judgment and stay execution of judgment. The trial court denied the ex parte application in favor of a noticed motion. Nhan, Frank, and Ngo filed a noticed motion to set aside the default and default judgment, as well as stay the execution of judgment.

Nguyen filed an opposition to the motion to set aside the default on April 24, 2018. Nguyen argued that the motion was effectively a motion for reconsideration of the order denying the motion to vacate the default judgments without meeting the statutory requirements for reconsideration. In addition, there was no proposed answer or other pleading. The moving parties had failed to present a reasonable excuse. Prosperous Law Group served an answer to the first amended complaint on behalf of Canyon Swiss and Nhan before Frank was added as a Doe defendant. Prosperous Law Group filed a motion to be relieved as counsel on March 2, 2017, which was granted by the court on April 7, 2017, long before the second amended complaint was filed. The individual defendants appeared in court on four separate occasions after Prosperous Law Group was relieved, and they were aware of Nguyen filing a second amended complaint. The second amended complaint was properly served and the defendants were aware of their responsibility to respond, but they intentionally ignored it. Nguyen sent a courtesy letter to all defendants on August 1, 2017, reminding that they had failed to respond to service of the summons and the second amended complaint. Frank acknowledged receipt of Nguyen’s August 1, 2017 letter advising the defendants that their defaults would be requested if they failed to respond to the complaint. Ngo sent letters to the court in July 2017, stating that his company was not involved with the wage and hour actions, and the court should not expect further response.

On May 4, 2018, Frank filed a case information statement with this appellate court. Listing the case numbers for both actions, he stated the appeal was from a default judgment entered on October 17, 2017. He also stated that notice of entry of judgment or a copy of the judgment was served by the clerk or by a party under rule 8.104 on October 25, 2017. He noted that a motion to set aside the default and default judgment had been filed. He also stated that his notice of his intent to move for new trial was filed and denied on April 6, 2018, with service of the order that day, apparently referring to the trial court’s denial of his ex parte motion in favor of a noticed motion. Frank attached file-stamped copies of both default judgments, including proofs of service reflecting that the judgments were served on him by an employee or agent of the plaintiffs’ counsel on December 4, 2017. He also attached a copy of the trial court’s tentative ruling for the hearing on October 25, 2017, denying the motion to set aside the defaults and default judgments.

On May 7, 2018, a hearing was held on the noticed motion to set aside the default, stay execution of judgment, and vacate the default judgment. No reporter’s transcript has been included in the record on appeal. The trial court denied the motion. The court found Nhan and Frank were impermissibly seeking reconsideration of the October 18, 2017 order denying the motion to set aside the default and default judgment without complying with the requirements set forth in Code of Civil Procedure section 1008. The motion failed on that basis alone.

In addition, the procedural history of the case did not support the attestations of the moving parties that they believed their attorney filed an answer to the complaint for them, believed their interests were protected by the filing of an answer, did not check with the court about an answer being filed based on representation by counsel, and were not readily familiar with the process to verify filing of documentation. Prosperous Law Group was never Frank’s counsel of record, and in fact, Frank’s default was entered before Prosperous Law Group was relieved. Ngo did not even become a party to the lawsuit for nearly a year after Prosperous Law Group was relieved. Prosperous Law Group filed an answer to the first amended complaint on Nhan’s behalf, but Nhan was obligated to answer the second amended complaint after it became the operative pleading. All three moving parties were aware of their obligation to file responsive pleadings before their respective defaults were entered on the second amended complaint. Plaintiff’s counsel sent courtesy letters to advise them that their answers were overdue and should be filed by August 8, 2017, to avoid the entry of default. The trial court found the claims of mistake, inadvertence, surprise, and excusable neglect were not supported. In addition, the defendants failed to attach a proposed responsive pleading. Relief was not available under Code of Civil Procedure section 473.5, because the defendants had not argued that service was not properly effectuated on them. The trial court admonished the defendants not to file any additional motions to set aside the default and default judgment on the same purported grounds.

DISCUSSION

The issue is whether Frank’s March 28, 2018 notice of appeal was a timely appeal from the default judgments. We conclude that it was not.

“‘[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.’ (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations].’ (Estate of Hanley (1943) 23 Cal.2d 120, 123; see Cal. Rules of Court, rule 8.60(d).) [¶] ‘Except as provided in [California Rules of Court,] rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.’ (Cal. Rules of Court, rule 8.104(b).)” (Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294.)

Unless a statute or court rule provides otherwise, a notice of appeal must be filed on or before the earliest of: “(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” (Rule 8.104(a)(1).)[3]

In this case, the file-stamped copies of the default judgments that were submitted with the case information statement included proofs of service showing service by the plaintiffs on December 4, 2017. Based on the date of service by the plaintiffs under rule 8.104(a)(1)(B), an appeal from the default judgments had to be filed by February 2, 2018, to be timely. The notice of appeal filed March 28, 2018, was untimely under rule 8.104(a), unless the time to file was extended.

Certain post-judgment motions may extend the time to appeal if they are filed within the normal time to appeal from the underlying judgment. (Rule 8.108.) If a party serves and files a valid motion to vacate the judgment within the time to appeal the judgment under rule 8.104, then the time to appeal is extended until the earliest of: “(1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move—or motion—is filed; or [¶] (3) 180 days after entry of judgment.” (Rule 8.108(c); Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1108 (Starpoint).) “This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.” (Rule 8.108(a).)

On September 18, 2017, before the entry of the default judgments, Frank filed a motion to vacate the default judgments, which the trial court denied after entry of the default judgments. Even assuming that a premature motion to vacate default judgments may extend the time for filing an appeal under rule 8.108(c), no extension applied in this case. The earliest of the three possible dates provided for in rule 8.108(c) is December 18, 2017, 90 days after the date of filing the motion to vacate the default judgment. Because the time provided to file an appeal in rule 8.104(a) is longer, rule 8.108(c) does not apply and the time stated in rule 8.104(a) governs. As explained above, the appeal filed on March 28, 2018, was untimely under rule 8.104(a), and therefore, the appeal must be dismissed.

Frank did not file any other motion within the normal time to appeal from the default judgment which would extend the time to file an appeal. His March 28, 2018 notice of appeal was filed prior to his April 2018 motions to vacate the default judgments and does not encompass the subsequent orders. If a party files several consecutive motions, only those motions that are timely filed will extend a party’s time to appeal. (Starpoint, supra, 201 Cal.App.4th at p. 1108, citing Meier v. Heckel (1960) 183 Cal.App.2d 329, 331.) Whether the April 2018 motions are construed as motions to vacate the judgment or motions for reconsideration, they did not extend the time to file an appeal from the default judgments under rule 8.108.

We note that Frank did not appeal from the October 25, 2017 order denying the motion to vacate the default judgments. He does not explicitly argue on appeal that the trial court abused its discretion by denying his first motion to set aside the default judgments. Even if we were to construe the notice of appeal to encompass the October 25, 2017 order, no abuse of discretion has been shown. We review a trial court order denying relief from default judgment for an abuse of discretion. “On appeal from an order denying relief from default or a default judgment, we will not disturb the trial court’s factual findings where they are based on substantial evidence.” (Warren v. Warren (2015) 240 Cal.App.4th 373, 377.) The motion to vacate the defaults and default judgments filed on September 18, 2017, did not include a pleading proposed to be filed as required for relief under Code of Civil Procedure section 473, subdivision (b). Frank’s declaration did not articulate any mistake, inadvertence, surprise, or excusable neglect that caused him to fail to file an answer or other responsive pleading to the second amended complaint. No abuse of discretion was shown.

DISPOSITION

The appeal is dismissed. Respondents Minh Nguyen, Phien Pham, and Oai Tieu are awarded their costs on appeal.

MOOR, J.

We concur:

RUBIN, P.J.

BAKER, J.

[1] Because more than one party has the last name Trinh, they will be referred to individually by their first names for clarity. No disrespect is intended.

[2] All further rule references are to the California Rules of Court.

[3] “Rules of Court have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law.” (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.)