First American Title Co. v. Mirzaian

[958]

Opinion

KLEIN, P. J.

Defendant and appellant Eric Mirzaian (Mirzaian), in propria persona, purports to appeal a clerk’s entry of his default on the complaint filed by plaintiff and respondent First American Title Company (plaintiff), and an order denying his motion to set aside the entry of default.

1

No appeal lies from the clerk’s entry of default, or from an order denying a motion to set aside the clerk’s entry of default. Further, the notice of appeal, which was filed before the default prove up, and thus before the trial court announced its intended ruling, cannot be deemed a premature notice of appeal from the default judgment. (Cal. Rules of Court, rule 2(d).)

2

Therefore, the appeal is dismissed.

Factual and Procedural Background

On August 3, 2001, plaintiff filed a complaint against Mirzaian, alleging various causes of action, including fraud, conversion and breach of fiduciary duty.

On December 5, 2001, plaintiffs counsel wrote Mirzaian advising, “You are, . . . technically in default. Accordingly, my client has instructed me to take the default of you . . . if an answer is not filed by December 17, 2001.”

On December 12, 2001, Mirzaian wrote back, “Please don’t bother requesting or entering a default; I will be setting it aside.”

On December 18,2001, the superior court clerk entered Mirzaian’s default as requested by plaintiff.

On January 3, 2002, Mirzaian filed a motion to set aside the clerk’s entry of default, as well as a proposed answer.

On February 8, 2002, the trial court denied Mirzaian’s motion, ruling “A motion to transfer a case does not stay or otherwise delay the time requirements of filing an Answer. The evidence presented demonstrates that Defendants made a calculated decision to permit entry of default, believing that they