Simpson v. Nelson
Filed 4/4/08 Simpson v. Nelson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
INEZ SIMPSON et al., Plaintiffs and Appellants, v. DAN NELSON et al., Defendants and Respondents. | H031710 (Santa Clara County Super. Ct. No. CV059109) |
Appellants Inez Simpson and Donald Simpson appeal from an order setting aside default and default judgment against respondent Dan Nelson. While the appeal was pending in this court, respondent filed a motion to dismiss the appeal as taken from a nonappealable order. Appellants have not opposed the motion. Finding the motion meritorious, we will dismiss the appeal.
Factual and Procedural Background
Appellants sued Dan Nelson and Art & Imagination, LLC. for moneys owed on a delinquent promissory note. While settlement negotiations were ongoing, appellants successfully secured a default and a default judgment against both defendants. Both the default and default judgment were set aside, and defendants answered the complaint and filed a cross-complaint. Subsequently, the trial court again entered default and default judgment; this time only against the individual defendant, Dan Nelson for failure to personally appear. After Mr. Nelson successfully moved to set aside the default and default judgment, appellants filed a timely notice of appeal from that order.
While the appeal was pending in this court, the respondents filed a motion to dismiss the appeal as taken from a nonappealable order.
Discussion
In their motion, respondents contend that the order setting aside default and default judgment is not currently appealable because the cross-complaint is still pending. Therefore, there is no final judgment in the case. Appellants do not oppose the motion.
Appellate jurisdiction is limited to those judgments and orders described in Code of Civil Procedure section 904.1. In order to be appealable, a judgment must be final. (Code of Civ. Proc., 904.1, subd. (a).) Where a cross-complaint remains pending between the parties, there is no final judgment on all issues, and no appeal may lie. (California Dental Assn. v. California Dental Hygienists Assn. (1990) 222 Cal.App.3d 49, 59.) Here, apparently the cross-complaint is still pending in the trial court. As there is no final judgment, the appeal must be dismissed as taken from a nonappealable order.
Disposition
The appeal is dismissed as taken from a nonappealable order.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.
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