Filed 12/5/18 Salessi v. Peimani CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| KAREEM SALESSI,
Plaintiff and Appellant,
v.
FARROKH PEIMANI,
Defendant and Respondent.
|
G054397
(Super. Ct. No. 04CC11080)
O P I N I O N |
Appeal from a judgment and postjudgment orders of the Superior Court of Orange County, James L. Crandall, Judge. Affirmed in part and dismissed in part.
Kareem Salessi, in pro. per., for Plaintiff and Appellant.
Cohen and Jacobson, Sean M. Jacobson and Lawrence A. Jacobson for Defendant and Respondent.
* * *
In 2004, Kareem Salessi filed the underlying complaint against 19 defendants, including respondent Farrokh Peimani, arising out of the purchase of a home in Laguna Niguel. Most of the defendants prevailed on demurrers or judgments on the pleadings. We affirmed several of those orders in a prior opinion filed in 2008. (Salessi v. Shadab (Sep. 30, 2008, G038002) [nonpub. opn.].) We described the complaint as “a desultory document to say the least,” noting it was overrun with conclusions and arguments and descended into a labyrinth of nonsensical conspiracy theories, highlighted by a claim that the White House ordered the attacks of September 11, 2001.
This case was resurrected when defendant Farrokh Peimani, who did not previously appear, successfully moved to vacate a default judgment, and subsequently obtained an order of dismissal following the sustaining of a demurrer. Salessi appealed from the order granting the motion to set aside the defaults, the judgment of dismissal, and from a subsequent order denying his motion to set aside the dismissal. Although not entirely clear, Salessi also purports to appeal from unspecified “judicial challenges.” We conclude the appeal from the orders setting aside the defaults and from the subsequent judgment are untimely, and the appeal from the postjudgment order refusing to set aside the dismissal lacks merit. Accordingly, we affirm.
FACTS
The relevant timeline of procedural events is as follows:
December 1, 2015 — Peimani moved for relief from default and a default judgment on the ground that he was never served with the complaint.
March 11, 2016 — the court ordered the default and default judgment vacated.
July 14, 2016 — the court sustained a demurrer to the operative complaint.
August 1, 2016 — the court entered a judgment of dismissal.
August 2, 2016 — Salessi filed a “Motion to Set Aside Dismissal of Case & Remand for Reassignment” on the ground that he had not been properly served with a notice that the case had been reassigned to a different judge. He claimed this prejudiced him because he “likely” would have filed a peremptory challenge.
August 4, 2016 — Peimani filed and served a notice of entry of judgment re: dismissal. From this point, Salessi had 60 days to appeal the judgment (Cal. Rules of Court, rule 8.104),[1] which expired on October 3, 2016, unless the time was extended under rule 8.108.
September 22, 2016 — the court entered a minute order denying the motion to set aside the dismissal.
November 2, 2016 — the court entered a formal order denying the Motion to Set Aside the Dismissal and ordered the clerk to provide notice by eService. The clerk served Salessi.[2]
December 19, 2016 — Salessi appealed from the order setting aside the defaults, the judgment of dismissal, and the postjudgment order denying his motion to set aside the dismissal.
Peimani filed a motion to dismiss this appeal in its entirety. We grant the motion to dismiss in part and otherwise affirm the orders of the court.
DISCUSSION
A fundamental tenant of appellate law in California is that we have no jurisdiction to entertain late appeals. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) The order granting the motion to set aside the default judgment was entered on March 11, 2016. An order setting aside a default judgment is an appealable order. (County of Stanislaus v. Johnson, (1996) 43 Cal.App.4th 832, 834.) “The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed.” (Rule 8.104(c)(2).) The minute order granting the motion did not direct that a written order be prepared. Thus, the last possible date on which a valid notice of appeal could be filed was 180 days after March 11, 2016. (Rule 8.104 (a)(1)(C).) That date was September 7, 2016. Salessi’s notice of appeal was filed on December 19, 2016, nearly three and one-half months late. We lack jurisdiction to review this order. Accordingly, we grant Peimani’s opposed motion to dismiss the appeal from the order setting aside the default judgment and we also grant the request for judicial notice included in the motion.
As we pointed out above, any appeal from the judgment of dismissal had to be filed by October 3, 2016, unless the time was extended under rule 8.108. That rule provides an extension for, as relevant here, the filing of a motion to vacate the judgment. In no event, however, could the extension extend beyond 90 days from the date Salessi filed his motion to vacate. (Rule 8.108, subd. (c)(2).) That deadline expired October 31, 2016. The appeal was not filed until December 19, 2016. Accordingly, any appeal from the judgment is late, and we have no jurisdiction to entertain it. We therefore grant the motion to dismiss the appeal from the judgment of dismissal.
However, a statutory motion to vacate the judgment pursuant to Code of Civil Procedure section 473 is an appealable order. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394 [“‘While a denial of a motion to set aside a previous judgment is generally not an appealable order, in cases where the law makes express provision for a motion to vacate such as under Code of Civil Procedure section 473, an order denying such a motion is regarded as a special order made after final judgment and is appealable’”].)[3] Salessi cited section 473 as a basis for his motion to vacate the dismissal, and thus we will deem the order denying the motion appealable. Salessi was served with a notice of entry of the order on November 2, 2016, and appealed within 60 days. (See rule 8.104(a)(1)(A).) Because Salessi has timely appealed from an appealable order, we deny Peimani’s motion to dismiss the appeal from the denial of the motion to set aside the dismissal.
Nonetheless, we find the court did not err in denying the motion to vacate the dismissal. The basis of his motion was that on June 14, 2016, while the demurrer was pending, the prior judge recused himself, and the case was reassigned to Judge Crandall. The clerk’s notice of reassignment was sent to Salessi’s prior attorney, who had already substituted out of the case, and not to Salessi, who was representing himself. That notice gave the parties 15 days to file a peremptory challenge. Although Salessi claims he discovered the reassignment minute order on July 22, 2016, the record contains a proof of service, dated June 23, 2016, for a notice continuing the demurrer due to the reassignment of the case to a different department. However, that notice did not reference the 15 days to file a peremptory challenge. So he knew about the reassignment, but not necessarily the limitation on filing a peremptory challenge. In his motion to set aside the dismissal, he argued the lack of notice of the minute order prejudiced him because he “likely” would have filed a peremptory challenge.
The court clearly should have notified Salessi himself of the reassignment, not Salessi’s prior attorney. However, that was no basis for vacating the dismissal. If Salessi had wanted to file a peremptory challenge to Judge Crandall, he should have done so prior to the judgment. If the court had deemed it untimely notwithstanding the lack of notice, Salessi could have filed a writ. (§ 170.3, subd. (d) [denial of disqualification motion is not appealable and can only be reviewed by statutory writ within 10 days of the order].) By the time Salessi filed his motion to set aside the dismissal, judgment had been entered. We are not aware of any authority that would empower the court to vacate a judgment on the ground that a party would have liked to have filed a peremptory challenge before the judgment.
Moreover, to obtain reversal on appeal, Salessi must demonstrate that the error created a miscarriage of justice, meaning it is reasonably probable that, absent the error, Salessi would have obtained a more favorable result. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 327.) We find the error did not prejudice Salessi. If Salessi had been given proper notice of the reassignment, maybe he would have exercised a peremptory challenge. But there is nothing in the record to suggest Judge Crandall provided an unfair forum for the demurrer. And absent some patent unfairness, it is impossible to prove prejudice on the generic ground that another judge might have ruled differently. That would be, as one court put it, “an inherently speculative enterprise.” (People v. Superior Court (Tejada) (2016) 1 Cal.App.5th 892, 900.)
Finally, as noted parenthetically above, the denial of a judicial disqualification motion is not appealable. It may only be challenged by a statutory writ. (§ 170.3, subd. (d).) thus, to the extent Selessi seeks to appeal unspecified “judicial challenges,” we lack jurisdiction to consider the matter.
DISPOSITION
The order denying Salessi’s motion to set aside the dismissal is affirmed. The appeal is otherwise dismissed. Respondent shall recover his costs incurred on appeal.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
ARONSON, J.
