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Temkin v. Kaplan2/5/2002
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A default was entered against plaintiff and cross-defendant Sheldon H. Temkin for failure to answer a cross-complaint of defendant and cross-complainant Martha J. Kaplan. Temkin appeals from the subsequent judgment against him, denial of his motion to vacate and set aside the default and judgment, and an assignment order issued to facilitate payment of the judgment. He argues that the default was void because it was entered before his demurrer to the cross-complaint had been sustained or overruled. We agree that the default was entered in error and reverse the denial of the motion to vacate and set aside the default and the judgment on the complaint and the cross-complaint. As there is no longer a judgment to satisfy, we vacate the assignment order.
Factual and Procedural Summary
Though this case, like most civil actions, started with the filing of a complaint, neither party requested that the complaint be placed in the record on appeal. Therefore, we begin this recital with the filing of the first amended cross-complaint and present only a procedural summary.
On June 14, 1999, Kaplan filed her cross-complaint, alleging causes of action for trespass, conversion and malicious prosecution. Temkin's complaint (which the trial court indicated was the first amended complaint) apparently alleged conversion of, or sought recovery of, the same personal property that was the subject matter of the conversion cause of action in the cross-complaint. The dispute arose after Kaplan foreclosed on a deed of trust to a residence that Temkin gave her as security for a loan, and involved personal property left in the residence after the foreclosure .
Temkin demurred to the cross-complaint on July 21, 1999, and a hearing on the demurrer was scheduled for August 16, 1999. The hearing was continued to August 25, September 22, October 13, and November 10. Temkin noticed at least the first of those continuances with a filing that recited an incorrect date. He filed a notice of continuance of the November 10 hearing (stating in the body of the notice that the hearing was to be continued from November 11) but the court either rejected or failed to take note of that continuance. Judge Collins convened a hearing on the demurrer on November 10, but there being no appearances, the motion was "placed off calendar, not to be re-calendared without the express permission of the court."
Though Temkin's demurrer had neither been ruled upon nor stricken, Kaplan requested entry of default on December 27, 1999, and the clerk entered default the next day. Judge Letteau held a trial on the matter April 3, 2000. After Kaplan proved up her damages on the cross-complaint, the court awarded Kaplan $117,914 in general damages, $96,000 in punitive damages, and costs.
The court then heard argument and ruled on several motions in limine brought by Kaplan, the purpose of which was to preclude Temkin from presenting evidence in support of his complaint. Kaplan's motion in limine No. 1, which was granted as to the first cause of action in the complaint only, precluded Temkin from offering evidence inconsistent with allegations in the cross-complaint that he was deemed to have admitted by defaulting. Kaplan's motion in limine No. 3, which was granted without restriction, was a sanction for discovery abuses by Temkin. It prevented Temkin from presenting any
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