Lagundoye v. GRE Development
Filed 10/15/08 Lagundoye v. GRE Development CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
YACUB LAGUNDOYE, Plaintiff and Appellant, v. GRE DEVELOPMENT, INC., Defendant and Respondent. | B198973 (Los Angeles County Super. Ct. No. GC 033101) |
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Coleman A. Swart, Judge. Dismissed; order affirmed.
Yacub Lagundoye, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
* * * * * *
A judgment of nonsuit was entered on or about August 22, 2005. Appellant Yacub Lagundoye, plaintiff in the action, moved to vacate the judgment on April 30, 2007. At all material times, appellant was (and is) in propria persona. These appeals are from the judgment and the order denying the motion to vacate the judgment. We dismiss the appeal from the judgment and affirm the order.
FACTS
On April 12, 2004, appellant filed an action arising from a trustees sale of a residence against multiple defendants, including respondent GRE Development, Inc.[1] The gist of the action is that appellant was the owner of the single family residence in Pasadena; that appellant fell behind in his mortgage payments; that defendants John Rampello and Vincent Mascaive (not parties to this appeal) promised appellant that they would buy the residence from him on terms that would net appellant $75,000; that Rampello and Mascaive purported to buy the residence but did not in fact do so, concealing from appellant that they had not bought it; that this led appellant to believe that he had successfully sold the residence and no longer needed to be concerned about being in default; that the residence was sold to defendants at a trustees sale on September 13, 2002, for $319,500.01; and that respondent became the title holder.
The case was called for trial on August 22, 2005. After several witnesses testified, the court granted motions for nonsuit brought by the defendants, including respondent.
Appellant filed a motion to vacate the judgment on April 30, 2007. The motion alleged that appellant was incarcerated from April 6, 2005, to March 9, 2007. (As we discuss post, appellant was present during the trial held on August 22, 2005.) The motion alleges that appellant was not present when the motions for nonsuit were made and that the judgment should be set aside for this reason. In addition, the motion alleges that the persons who testified as defendants Rampello, Mascaive, Carmen and Angel Santos were impostors.
The trial court denied this motion on April 30, 2007.
On May 1, 2007, appellant filed a notice of appeal in propria persona in which he stated that he appeals from order entered by the court on August 22, 2005.
On May 23, 2007, appellant in propria persona filed another notice of appeal, which states that the appeal is from the order denying his motion to vacate the judgment.
DISCUSSION
1. The Purported Appeal from the Judgment Entered Following the Granting of the Motions for Nonsuit Is Untimely and Must Be Dismissed
A notice of appeal must be filed within 60 days after notice of entry of judgment or 180 days after the entry of judgment. (Cal. Rules of Court, rule 8.104(a).) The timely filing of the notice of appeal is jurisdictional and is an absolute prerequisite to the appellate courts power to entertain the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
Because an order of dismissal was entered following the order granting the motions for nonsuit, the appeal from that judgment noticed on May 7, 2007, is not timely and therefore the appeal from the judgment must be dismissed.
2. The Order Denying the Motion to Vacate Is Affirmed
We treat the motion to vacate the judgment as an equitable proceeding to set aside the judgment. (See generally 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, 218, pp. 825-826.)
The reporters transcript of the trial held on August 22, 2005, shows that appellant was present throughout those proceedings, including when the motions for nonsuit were made and granted. The record reflects that appellant, who was in propria persona during the trial, fully participated in those proceedings. Since he did not assert during the trial that some of the witnesses were impostors, he has waived this belated claim.
Importantly, appellant was not prevented from being present at the trial and from participating in it. Equitable relief from a judgment is granted when the person seeking such relief was prevented either by extrinsic fraud or mistake from taking part in the trial that resulted in the judgment. (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, 225, 230, pp. 832-833, 840-841.) Since this essential element for equitable relief from the judgment is lacking, the order denying the motion to vacate must be affirmed.
DISPOSITION
The purported appeal from the judgment is dismissed. The order denying the petition to vacate the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
We concur:
COOPER, P. J.
BIGELOW, J.
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[1] GRE Development, Inc., apparently the sole respondent in this appeal, has not filed a brief.
