Oppland Group v. Gardner

Filed 3/30/06 Oppland Group v. Gardner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Dismissed.

William Gardner, in pro. per., for Defendant and Appellant.

Patricia Gardner, in pro. per., for Defendant and Appellant.

Tatum S. Hilmoe for Plaintiff and Respondent.

1. Introduction

Defendants and appellants William and Patricia Gardner appeal, after a default and default judgment were entered in favor of plaintiff and respondent, The Oppland Group, Inc. (Oppland). We are unable to review the issue on the record presented, inasmuch as the trial court has not yet had the opportunity to rule on an underlying factual question. The appeal is premature; we dismiss the appeal.

2. Factual and Procedural Background

The action appears to be based upon an alleged account stated for credit card charges. The register of actions shows that the summons on the complaint was issued on February 18, 2005. The register of actions further recites that proof of service on each of the defendants, Patricia Gardner and William Gardner, was filed with the court on or about May 11, 2005. On May 20, 2005, the court vacated a hearing on an order to show cause on the completion of the service of process. The register of actions recites that the original summons was returned and filed on June 2, 2005.

Neither the complaint, nor the proofs of service nor copies of the returned summons are included in the record on appeal.

On the same date that the original summons was supposedly returned, June 2, 2005, Oppland requested dismissal of the action as to the Doe defendants, and requested that the clerk enter the Gardners' default. The clerk duly entered the default.

On June 10, 2005, Oppland filed a declaration with exhibits in support of its judgment, and the court entered judgment in the amount of $27,765.14.

On July 29, 2005, the Gardners filed declarations reciting that they had not been served in the action; they did not receive notice of the action until after the default judgment had been entered. They moved ex parte to vacate the default and default judgment.

The trial court denied the request for ex parte orders and ordered that the â€