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Chevalier v. R. Zaballos & Sons2/11/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
The plaintiff, Kia Chevalier, appeals from an order setting aside a default judgment. Without reaching the merits of the case, we grant defendants' motion to dismiss the appeal as being from an non-appealable order.
PROCEDURAL BACKGROUND
On November 9, 2001, Kia Chevalier (hereafter Chevalier), filed an action for negligence in Alameda County Superior Court against R. Zaballos & Sons, Inc., (hereafter Zaballos) which sought compensatory and punitive damages for property and personal injury . An amended complaint filed on February 25, 2002, named Creekwood Apartments as an additional defendant and alleged separate causes of action for negligence, intentional tort, and fraud, each arising from an alleged wrongful eviction. On March 29, 2002, Zaballos and Creekwood Apartments filed an answer which included in the caption the following: "R. Zaballos & Sons, Inc.'s Answer to Complaint" - "Action Filed: February 25, 2002." On April 18, 2002, a "notice of errata" correcting the caption of the answer was filed stating that the answer "was intended to serve as a responsive pleading to the First Amended Complaint filed by plaintiff on February 25, 2002."
On May 9, 2002, the clerk of the superior court entered a default against Zaballos and Creekwood Apartments in the total amount of $5 million. Subsequently, on June 5, 2002, the superior court entered on its own motion an order setting aside the default "entered erroneously on 5-9-02." Chevalier filed a notice of appeal from the order setting aside the default.
DISCUSSION
The respondents, Zaballos and Creekwood Apartments, have filed a motion to dismiss the appeal as being from a non-appealable order, together with an opening brief. "Established California decisional law provides that no appeal lies from an order granting a motion to vacate a default upon which no default judgment has been entered." (Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521, 1522.) Accordingly, we dismiss the appeal from the order setting aside the default without reaching the merits of the order.
The appeal is dismissed. Costs are awarded to the respondents.
We concur:
Marchiano, P. J.
Stein, J.
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