Schneider National v. Ellis CA4/3

Filed 10/7/14 Schneider National v. Ellis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SCHNEIDER NATIONAL, INC. et al.,

Plaintiffs and Respondents, G049552

v. (Super. Ct. No. CIVDS906308)

WALTER L. ELLIS, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of San Bernardino County, John M. Pacheco, Judge. Motion to dismiss appeal granted. Appeal dismissed. Walter L. Ellis, in pro. per, for Defendant and Appellant. Tharpe & Howell, David S. Binder and Lala Kahramanian for Plaintiffs and Respondents. * * *

THE COURT:* We dismiss defendant’s appeal on the ground it is moot. BACKROUND Plaintiffs and respondents Schneider National, Inc. (Schneider) and Jeff Ames (Ames) each obtained a default judgment against defendant and appellant Walter Ellis. Ellis moved unsuccessfully under Code of Civil Procedure section 473, subdivision (b) to vacate the default judgments for mistake and excusable neglect. (All further statutory references are to the Code of Civil Procedure.) Ellis filed an appeal (the prior appeal) from the order denying the motion to vacate, as well as from the default judgments and other orders. Among the orders Ellis challenged in the prior appeal was the trial court’s denial of Ellis’s motion to disqualify the trial judge for bias pursuant to section 170.6. The trial court had concluded the peremptory challenge was untimely. Division Two of this court dismissed on various grounds the bulk of the prior appeal, including the appeal from the denial of the peremptory challenge. The dismissal order specifically noted an order denying a peremptory challenge “is not appealable and may be reviewed only by timely petition for writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); People v. Webb (1993) 6 Cal.4th 494, 522-523.)” Significantly, Ellis had not sought writ review of the order denying the peremptory challenge. Division Two allowed the prior appeal to proceed as to one order: the denial of the motion to vacate the default judgments. Following transfer of the prior appeal to Division Three, and while the prior appeal was pending, Ellis filed a new trial court motion to vacate the default judgments. The premise of this second motion to vacate was that the peremptory challenge had been timely filed, rendering all subsequent trial court orders and judgments void and subject to ___________________________________________________ * Before Rylaarsdam, Acting, P.J., Moore, J., and Fybel, J.