Rios

BACKGROUND

On August 21, 2019, Petitioner served a CPRA request on WVWD demanding all

agency credit card statements pertaining to amounts charged by Michael Taylor, based on

allegations of misuse of the agency credit card. On September 3, 2019, Tafoya, general

counsel for WVWD, responded on behalf of the agency, asserting certain objections to

the overbreadth of the request, but informing petitioner that the documents he sought

2 would be available for him to pick up on September 17, 2019. On September 5, 2019,

petitioner’s counsel sent a Government Code section 910 government claim letter to

Clarence Mansell, the director of the WVWD, stating that the agency failed in its duty to

respond to petitioner’s CPRA request. On October 16, 2019, petitioner’s counsel emailed

Mansell asking for confirmation that the records were available for inspection, incorrectly

stating that neither Mansell nor Tafoya had responded to his requests.

On December 9, 2019, petitioner filed a verified petition for writ of mandate for

violations of the CPRA, alleging that WVWD refused to release the records he sought.

The petition also alleges, mysteriously, but probably copied from a different complaint of

a similar nature, that petitioner had been economically injured by the City’s actions,

which injuries included confiscatory fines and excessive costs for citations and vehicle

towing.

Petitioner mailed a copy of the petition without a notice and acknowledgment of

receipt to WVWD. Plaintiff’s counsel contacted the secretary of the WVWD to advise

her that he had mailed the petition but forgot the notice of acknowledgment and wanted

to send her the notice of acknowledgment for her to sign. On February 4, 2020, the

WVWD secretary contacted Tafoya as general counsel, relaying the communication

received from Cook, and indicating she felt uncomfortable signing for receipt of service.

Tafoya advised her that no one should be communicating with petitioner’s counsel except

for WVWD’s counsel, and advised her to send attorney Cook a letter advising him she

3 was not authorized to speak with Cook about this or any lawsuit, and that Cook should

contact counsel for WVWD.

Apparently, Cook did not contact counsel for the WVWD, and, instead, on March

11, 2020, petitioner filed a request to enter default (by clerk). Respondent filed a motion

to vacate the default pursuant to Code of Civil Procedure, sections 473 and 473.5,

asserting that service of the petition was defective, that petitioner had improperly named

individuals as respondents, contrary to the CPRA, and had failed to serve the request to

enter default. The matter was heard on August 26, 2020, resulting in an order granting

relief from default to respondents.1

On September 28, 2020, petitioner filed a notice of appeal, incorrectly stating that

the appeal was from an order after judgment pursuant to Code of Civil Procedure, section

904.1.

DISCUSSION

Petitioner appeals the order granting WVWD relief from default, stating in his

notice of appeal that the order appealed from was an order after judgment, which is

appealable pursuant to Code of Civil Procedure, section 904.1, subdivision (a)(2). It was

not. The record includes the clerk’s entry of default only, and no default judgment was

entered. The appeal is not from a final judgment.

1Petitioner has filed a request for judicial notice of the fact that all respondents and their counsel were present for their board meeting on February 6, 2020, and decision on that request was deferred for decision by the panel. We deny that request as moot. interlocutory orders. (Code Civ Proc., § 904.1, subds. (a)(3)-(a)(13).) However, an order

granting a motion to vacate a default is not enumerated as an interlocutory order from

which an appeal may be taken.

California decisional law establishes 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, citing Leo v. Dunlap (1968) 260

Cal.App.2d 24, 25; see also, Misic v. Segars (1995) 37 Cal.App.4th 1149, 1154 [“When a

trial court grants a motion to vacate a default, an appeal does not lie in the absence of

entry of a default judgment”].)

Here, no judgment was entered on the default so it was not appealable. Insofar as

the order was nonappealable, we dismiss the appeal.

DISPOSITION

The appeal is dismissed. Respondent is entitled to costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.

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