Kassab v. San Diego Police Dept., D049915 (Cal. App. 2/29/2008)

• Decision Date: 29 February 2008
• Docket Number: D049915
• Court: California Court of Appeals Court of Appeals
• Parties: STEVE KASSAB, Plaintiff and Appellant, v. SAN DIEGO POLICE DEPARTMENT et al., Defendants and Respondents.

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STEVE KASSAB, Plaintiff and Appellant, v. SAN DIEGO POLICE DEPARTMENT et al., Defendants and Respondents.

D049915

Court of Appeals of California, Fourth Appellate District, Division One

February 29, 2008

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of San Diego County, No. GIC848888, John Meyer, Judge. Affirmed.

O'ROURKE, J.

Steve Kassab purports to appeal from what he characterizes as an order denying him "the right to file a default judgment" against an individual, John Bailey, who he initially sued as "AKA JB." He contends the trial court erred by determining that the default judgment against that defendant was joint and several and was therefore satisfied by an earlier settlement Kassab had entered into with other non-defaulting defendants. Because Kassab has shown no basis to reverse the trial court's order, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND¹

In June 2005, Kassab filed a complaint for civil rights violations, false arrest and violation of federal law against the San Diego Police Department, the City of San Diego, and persons named as "Thomas Joy, an individual; William Cahill, an individual; AKA JB, an individual; and Does 1 through 100, inclusive." As to the individual identified as AKA JB, Kassab alleged, "At all times relevant hereto, defendant AKA JB (hereinafter `Defendant Officer JB') was employed by defendant San Diego Police Department and City of San Diego as a police officer working in San Diego County, California. Officer JB refused to give his full name and he stated, `The city is too cheap to make me a business card.' " In August 2005, Kassab filed a form certificate of progress indicating he had been unable to serve the complaint on defendant AKA JB. He asked for an extension to file a certificate of service until September 8, 2005, explaining: "John Bailey — A.K.A. J.B[.] is avoiding procedure and process of service so as to conceal his true and correct identity."

On August 31, 2005, Kassab moved for, and the clerk entered, the default of "AKA JB." In a declaration supporting the application, Kassab averred that the summons and complaint were personally served on AKA JB on July 19, 2005, but the defendant had not answered within 30 days. Kassab requested that a court judgment be entered for an amount over $2.5 million in damages, interest and costs.

In October 2005, the court ordered that Kassab be allowed to amend his complaint to substitute John Bailey in place of AKA JB in the complaint. The amendment, a San Diego Superior Court form on which Kassab was required to check boxes and fill in blanks, states, with handwriting in brackets {}: "Plaintiff(s), having designated a defendant in the complaint by the name of {A.K.A. J.B[.]} and having discovered said name to be incorrect and the correct name is . . . {John Bailey} amends the complaint by substituting such name(s) wherever the name of {A.K.A. J.B[.]} appears in said complaint."

In December 2005, Kassab filed a case management statement indicating John Bailey, a party named in the complaint, had been served but had not appeared or had been dismissed, and that John Bailey had a default entered against him. Kassab requested that the court consider a motion to sever at the case management conference so he could pursue the default judgment.

The court eventually consolidated Kassab's action with one brought by another individual, Earnest Lee Owens, who had been involved in the same incident that was the subject of Kassab's action, and the matter was set for trial. On the day trial was to begin, Kassab and Owens reached a settlement with the San Diego Police Department, City of San Diego, Thomas Joy, and William Cahill reflected in the court's minute order as follows: "1. The defendants will pay the plaintiff a total of $25,000 ($12,500.00 each). [¶] 2. Each party shall bear their own costs. [¶] 3. Case to be dismissed with prejudice as to the settling defendants. [¶] 4. Plaintiff to schedule a Default Prove-Up as to John Bailey aka JB. [¶] 5. Settlement funds to be disbursed within 2 weeks."

In August 2006, Kassab applied for entry of a court judgment against AKA JB, who he identified in his declaration as John Bailey. On August 18, 2006, the court held a hearing on the matter, ultimately continuing the prove-up hearing to September 1, 2006. Before continuing the matter, the court stated its inclination would be to enter a default judgment in the amount of $25,000, which would be joint and several with the settling defendants.² On September 1, 2006, the court conducted a default prove-up hearing as to "John Bailey aka `JB'" and issued a minute order denying Kassab's request for a default judgment. Although that hearing was reported, Kassab did not request a reporter's transcript be prepared for the record on appeal. The minute order, which indicates it is for the "default prove-up as to John Bailey aka `JB' only" simply states: "The request for default judgment is denied[.]"

Thereafter, asserting the existence of new facts and circumstances (as well as trial court bias and abuse of authority), Kassab moved for reconsideration of the court's September 1, 2006 ruling. In part, he maintained that before the default prove-up hearing, he had supplied the court with exhibits demonstrating he had suffered $25,000 in damages as well as civil and constitutional rights violations committed by John Bailey. On October 20, 2006, following arguments on the matter, the trial court ruled Kassab had not demonstrated new or different facts, circumstances or law as required by Code of Civil Procedure section 1008.

On November 8, 2006, the court amended its minute order of September 1, 2006, nunc pro tunc, to state that the "default judgment against `AKA JB' is joint and several and has therefore been satisfied by the $25,000 settlement from the City of San Diego." On November 20, 2006, Kassab filed the present appeal.

DISCUSSION

I. Appealable Order

Preliminarily, we address the question of whether the order from which Kassab purports to appeal is an appealable order. In the event of doubt, this is a question we must raise on our own initiative. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1432.) Kassab's notice of appeal states he is appealing from a "default judgment." However, neither the record before us nor the superior court file contains a final judgment as to John Bailey or AKA JB. In the statement of appealability in his opening brief, Kassab indicates he filed a notice of appeal from the October 20, 2006 order "denying a default judgment against AKA JB/John Bailey." He asserts that order is appealable because after its entry no issue was left for future consideration; that he "can no longer effectuate his interests at the trial court level . . . ."

In fact, the trial court's October 20, 2006 order was one denying Kassab's motion for reconsideration, a nonappealable order. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Morton v. Wagner (2007) 156 Cal.App.4th 963, 969; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 823 & fn. 8.) However, it appears Kassab intended to appeal from the court's September 1, 2006 order denying him a default judgment. If that underlying order is in effect an appealable order or judgment, we may construe the notice of appeal from that order. (See e.g., Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 19-22 [appeal from nonappealable order denying a new trial may be construed as an appeal from an existing final judgment].) It is well established that a notice of appeal that specifies a nonappealable order but is timely with respect to an existing appealable order or judgment will be construed to apply to the latter judgment or order. (Id. at p. 21, quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669.)³

Concededly, the denial of a request to enter a default judgment is not listed as an appealable order in Code of Civil Procedure section 904.1, subdivision (a), which lists orders that are appealable, nor is there a statute other than section 904.1, subdivision (a) that makes such a denial an appealable order. However, that does not prevent us from looking to the order's substance and effect in assessing appealability. "In `determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable . . . [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where 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, 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.'" (Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101-1102, quoting Lyon v. Goss (1942) 19 Cal.2d 659, 669-670; see also County of Santa Clara v. Redevelopment Agency (1993) 18 Cal.App.4th 1008, 1016, fn. 4; Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539.) A judgment is final "`"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."'" (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304; see also Code Civ. Proc., § 577 [a judgment is the final determination of the rights of the parties in an action or proceeding].) "`[W]here 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 nonappealable. (Olson v. Cory (1983) 35 Cal.3d 390, 399.)

We are satisfied that the September 1, 2006 order pertaining to Kassab's ...