Filed 3/20/20 Daniels v. Murillo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DIANE DANIELS,

Plaintiff and Appellant,

v.

JAIME MURILLO et al.,

Defendants and Respondents.

D075484

(Super. Ct. No. 37-2018-00018217- CU-UD-CTL)

APPEAL from two postjudgment orders of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Appeal dismissed.

Diane Daniels, in pro. per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Plaintiff Diane Daniels (Appellant) appeals from two postjudgment minute orders: one filed November 2, 2018, and one filed November 16, 2018. Each of these orders contains multiple rulings, but none of the rulings is an appealable order. Without an appealable order, we lack jurisdiction; and without jurisdiction, we must dismiss the appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant represented herself throughout the trial court proceedings and is now representing herself on appeal. In both the trial and appellate courts, the procedural rules apply the same to a self represented party as to a party represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [“the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation”].) “The same burdens are imposed uniformly and equally on all appellants, and self represented parties are ‘ “held to the same restrictive procedural rules as an attorney.” ‘ ” (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-345; accord, Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 [“The same rules apply to a party appearing in propria persona as to any other party.”].) The fact that a party is representing herself is not a basis for special treatment that would be unfair to the other litigants. (Rappleyea, at pp. 984-985; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).) Thus, while Appellant’s self-represented status no doubt contributed to certain procedural and substantive deficiencies in both the trial and appellate courts, it does not excuse them.

Appellant filed this action in April 2018 as an unlawful detainer. She is the plaintiff, and she named as defendants Jaime Murillo, Aledra Retano, and Brian Richard (together Respondents). Appellant alleged that Respondents were at that time “in possession of” specifically identified premises located on Medio Street, San Diego, California (Premises) based on an agreement to rent the Premises “as a . . . fraud deed of trust.” (Sic.) Appellant further alleged that she attached as exhibits to the complaint copies of the following three documents: (1) the written agreement to rent the Premises; (2) a July 3, 2017 “five[ ]day demand for possession”; and (3) proof of service of the five-day demand. However, the complaint contains no exhibits. As for relief, Appellant sought: (1) possession of the Premises; (2) damages, at a daily rate of $85, from June 6, 2017 through judgment; (3) statutory damages up to $600 for malice; (4) “due to fraudulent deed of trust, malicious representation, demand restitution, actual damages, punitive damages, declaratory relief quiet title” (sic); and (5) costs.

According to the ROA, on April 24, July 6, July 17, July 17, and August 1, 2018, Appellant filed a first amended complaint, another first amended complaint, a second amended complaint, a third amended complaint, and a fourth amended complaint, respectively. The clerk’s transcript does not contain any of these amended complaints.

On August 20, 2018—at a time when the fourth amended complaint was the operative complaint, according to the ROA—the clerk of the superior court entered a clerk’s unlawful detainer judgment by default for possession only. The judgment is in favor of Appellant, against Respondents, and directs that Appellant is entitled to possession of the Premises.

On an unidentified date, certain unidentified Respondents filed an ex parte application to “stay the lockout”; and at a continued hearing on the application in mid-September 2018 the court “inform[ed]” the parties that “the order staying the lockout will remain in effect until 11/16/18.” A week later, Appellant filed a “Motion for Reconsideration Lift Stay, violation of California Civil Code 918(b), and unalienable rights, taxes owed.” (Sic.) At a hearing in October 2018, the court denied the motion, ruling in part: “The relief [Appellant] seeks via this Motion is not clear. To the extent this Motion seeks an order reconsidering a prior ruling of this Court, . . . [Appellant] fails to set forth a basis for reconsideration. See Code Civ. Proc.[, §] 1008 (‘based upon new or different facts, circumstances, or law’). There is no evidence or rational argument supporting the claimed conflict of interest and fraud.”

By minute order filed November 2, 2018 (November 2 Order), the court set aside the August 2018 default judgment in favor of Appellant. More specifically, the court ruled that, pursuant to Code of Civil Procedure section 473.5, subdivision (a), Respondents “provided evidence demonstrating that service has not resulted in actual notice in time to defend the action.” The November 2 Order also: sustained in part and overruled in part Respondents’ special and general demurrers; granted Appellant leave to file a fifth amended complaint; and denied without prejudice Respondents’ motion for an order determining Appellant to be a vexatious litigant and for a prefiling order prohibiting Appellant from filing new self-represented litigation in California without first obtaining leave of court.

By minute order filed November 16, 2018 (November 16 Order), the court ruled that the “[l]ockout scheduled for 11/16/18 is ordered quashed and vacated.” The November 16 Order also: directed Appellant “to file the 5th Amended Complaint” that she had already served on Respondents; set a deadline by which Respondents were to respond to the fifth amended complaint; and denied without prejudice the ex parte application that initiated the hearing.

On November 28, 2018, in one notice of appeal, Appellant timely appealed from the November 2 Order and the November 16 Order.

II. DISCUSSION

As we explain, we lack jurisdiction to review both the November 2 Order and the November 16 Order. Accordingly, we will dismiss the appeal.

A. Law

Before considering the merits of any appeal, we must first consider appellate jurisdiction. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“A reviewing court must raise the issue [of appellate jurisdiction] on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1.”].) Although appellate jurisdiction is constitutionally prescribed (Cal. Const., art. VI, § 11), a party’s right to appeal “is entirely statutory” (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267)—generally by Code of Civil Procedure section 904.1 in appeals like Appellant’s (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 556-557 [§ 904.1, subd. (a) codifies the general list of appealable orders and judgments]).

Code of Civil Procedure section 904.1 codifies the “one final judgment rule”—by which, an appeal lies only from a judgment or order that terminates the trial court proceedings by determining the rights of the parties and completely disposing of the matter in controversy. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point).) The general test of finality focuses on whether and to what extent issues remain to be decided in the trial court: ” ‘ “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final [and appealable], but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory” ‘ ” and not appealable. (Ibid., italics omitted.) Stated differently, a judgment is considered final for purposes of appellate jurisdiction ” ‘ “when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” ‘ ” (Ibid.) Under California law, there is ordinarily only one “final judgment” in an action. (Sullivan v. Delta Air Lines (1997) 15 Cal.4th 288, 304.)

An additional requirement for a party to appeal is that she must be “aggrieved” by the judgment or order on review. (Code Civ. Proc., § 902.) A party is legally “aggrieved” for purposes of initiating an appeal only if her “rights or interests are injuriously affected by the judgment”; and the effect must be “immediate, pecuniary, and substantial[.]” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 (County of Alameda).) Thus, for example, because “[a] party is not ‘aggrieved’ by a judgment or order rendered in his or her favor,” he or she may not appeal from such a judgment or order. (Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1611 (Jones & Matson); accord, Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.)

B. Analysis

In her required statement of appealability (rule 8.204(a)(2)(B)), Appellant tells us in her brief on appeal:

“This appeal is from judgment, September 12, 2018, JOEL R. WOHLFEIL denied Diane Daniels due process of law unalienable Rights wrongful foreclosure, set aside Clerk’s Unlawful Detainer Default, vacate Writ of Possession, and October 19, 2018, denial Motion for Reconsideration Writ of Possession; Code of Civil Procedure 904.1, subdivision (a)(1).” (Sic.)

This statement is problematic, since Appellant limited her notice of appeal to the court’s rulings on “11/2/18” and “11/16/18.” Even though a notice of appeal “must be liberally construed,” at a minimum it must “identif[y] the particular judgment or order being appealed.” (Rule 8.100(a)(2).) Here, Appellant did not identify either the September 12, 2018 “judgment” or the October 19, 2018 “denial Motion for Reconsideration” in her notice of appeal.

Putting aside the inaccuracies in the statement of appealability in Appellant’s brief, we consider whether we have jurisdiction based on the two orders Appellant did identify in her notice of appeal—i.e., the November 2 Order and the November 16 Order. As we explain, we lack jurisdiction to review each of the rulings in each of the orders from which Appellant appealed.

1. November 2 Order

The November 2 Order contains the following rulings: (1) Respondents’ motion to set aside the August 2018 default judgment is granted; (2) Respondents’ special demurrer to Appellant’s fourth amended complaint is overruled; (3) Respondents’ general demurrer to Appellant’s fourth amended complaint is sustained with leave to file a fifth amended complaint to deal with a specified deficiency; and (4) Respondents’ motion for an order determining Appellant to be a vexatious litigant and for a prefiling order regarding filing new litigation in California is denied without prejudice. As we explain, none is appealable.

The November 2 Order set aside the default judgment that Appellant obtained in August 2018. Code of Civil Procedure section 904.1, subdivision (a)(2) generally allows for an appeal from a final postjudgment order, but only where the underlying judgment is also final and appealable (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628 (Elsea))—i.e., by a judgment that terminates the trial court proceedings by completely disposing of the matter in controversy (Dana Point, supra, 51 Cal.4th at p. 5). Here, however, as we explain, the August 2018 judgment which was set aside by the November 2 Order is neither final nor appealable.

The August 2018 judgment is an unlawful detainer judgment for possession only. However, because the April 2018 unlawful detainer complaint sought actual damages, punitive damages, restitution, and declaratory relief in addition to possession of the Premises, the default judgment was neither final nor appealable. (See, e.g., First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 863 [appeal from unlawful detainer judgment for possession only treated as a writ petition, because such a judgment is a “nonappealable interlocutory order”].)

Moreover, even if Appellant’s claims for relief other than possession of the Premises had been dismissed prior to entry of the judgment—as often happens in unlawful detainer actions, resulting in a final appealable judgment for possession only —the record in this case establishes without question that the judgment for possession in this case was not a final appealable judgment. Here, according to the ROA, at the time the clerk entered the default judgment on August 20, 2018, the operative complaint was a fourth amended complaint filed August 1, 2018—not the original complaint for unlawful detainer on which the default judgment was based. Under these circumstances, the default judgment did not terminate the trial court proceedings by completely disposing of the matter, since the default judgment related to a complaint that had been amended—and, thus, superseded (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130 [“an amended complaint supersedes all prior complaints”])—at least four times prior to entry of the judgment. As a matter of law, each superseded complaint ” ‘ “ceases to perform any function as a pleading,” ‘ ” since each amended complaint ” ‘ “supplants all prior complaints.” ‘ ” (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 875, fn. 5, quoting Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Accordingly, “[t]he amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect . . . as a basis for judgment.” (State Compensation Ins. Fund, at p. 1130, italics added.)

Because Appellant has not established that the August 2018 default judgment was appealable as a final judgment, Appellant cannot establish that the November 2 Order setting aside the default judgment is appealable as an order after entry of a final judgment. (Elsea, supra, 4 Cal.App.4th at p. 628; Neilsen v. Saylors (1956) 146 Cal.App.2d 139, 140.) For this reason, we lack jurisdiction to consider that portion of the November 2 Order setting aside the default judgment.

Next, the November 2 Order overruled in part and sustained with leave to amend in part Respondents’ demurrers to Appellant’s fourth amended complaint. However, ” ‘[o]rders sustaining demurrers are not appealable’ ” (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 532), and Appellant is not aggrieved by that portion of the order overruling the demurrers (Jones & Matson, supra, 155 Cal.App.4th at p. 1611). For these reasons, we lack jurisdiction to consider the rulings on Respondents’ demurrers. (Roger, at p. 532; Jones & Matson, at p. 1611.)

Finally, the November 2 Order denied without prejudice Respondents’ motion for an order determining Appellant to be a vexatious litigant and for a prefiling order regarding filing new litigation in California. Since Appellant is not aggrieved by that portion of the order denying a motion brought by Respondents, we lack jurisdiction to consider that ruling. (Jones & Matson, supra, 155 Cal.App.4th at p. 1611.)

In sum, since none of the court’s rulings in the November 2 Order is appealable, we lack jurisdiction to consider the order.

2. November 16 Order

The November 16 Order contains the following rulings: (1) The “[l]ockout scheduled for 11/16/18 is ordered quashed and vacated”; (2) Appellant is directed to file the fifth amended complaint that she previously served on Respondents; (3) Respondents are required to respond to the fifth amended complaint by a specified date; and (4) Appellant’s ex parte application is denied without prejudice.

Initially, because none of those four rulings terminates any, let alone all, proceedings, none is a final order. (Dana Point, supra, 51 Cal.4th at p. 5.)

In addition, Appellant is not aggrieved either: (1) by being directed to file an amended complaint she previously already served; or (2) by a requirement that Respondents file their response to Appellant’s amended complaint by a specified date; or (3) by the denial without prejudice of an ex parte application. (County of Alameda, supra, 5 Cal.3d at p. 737.)

Finally, “an order . . . dissolving an injunction” is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6); and determining whether a particular order constitutes an appealable order dissolving an injunction “depends not on its title or the form of the order, but on ‘ “the substance and effect of the adjudication” ‘ ” (PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 142-143 [order appealable, because its ‘ ‘ “substance and effect” ‘ ” were to enjoin defendants]). In this regard, an argument can be made that the portion of the November 16 Order quashing and vacating the lockout scheduled for later the same day has the ” ‘ “substance and effect” ‘ ” of dissolving a prior order directing that Respondents be locked out—presumably, but without confirmation—of the Premises. However, by not providing the details of the original order locking out Respondents and an explanation or argument as to how the November 16 Order affected the original order, Appellant has not made any showing in support of her burden of establishing appellate jurisdiction to review the trial court’s ruling.

Thus, since none of the court’s rulings in the November 16 Order is appealable, we lack jurisdiction to consider the order.

III. DISPOSITION

We dismiss the appeal based on a lack of jurisdiction to review either the November 2 Order or the November 16 Order. Costs on appeal are denied. (Rule 8.278(a)(5).)

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.