Vasquez v. Salem CA4/3

Filed 8/6/15 Vasquez v. Salem CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BERNARD VASQUEZ,

Plaintiff and Appellant, G052057

v. (Super. Ct. No. 30-2012-00588366)

YASSER SALEM, OPINION

Defendant and Respondent.

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Motion to dismiss appeal granted. Bernard Vasquez, in pro. per., for Plaintiff and Appellant. Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, John C. Kelly, David P. Pruett and Sandra J. Carlson for Defendant and Appellant. * * *

THE COURT:* We dismiss plaintiff’s appeal because there is no appealable judgment or order. Plaintiff cannot appeal from the trial court’s refusal to direct the superior court clerk to take defendant’s default. I Plaintiff sued defendant for medical malpractice following a below-the- knee amputation because of a gangrenous leg. The operative pleading is the third amended complaint. Defendant filed a motion for summary judgment or, in the alternative, for summary adjudication. Defendant also successfully filed a motion to strike portions of plaintiff’s third amended complaint. On April 8, 2015, the trial court held a hearing on defendant’s summary judgment motion. Plaintiff objected to any relief for defendant because of defendant’s failure to file a new answer to the unstricken portions of the third amended complaint. Plaintiff orally requested that the trial court direct the superior court clerk to enter a default against defendant. The trial court declined to do so. The court noted that Code of Civil Procedure section 586, subdivision (a)(2) provides that a default may be taken if a motion to strike is granted in whole or in part and the defendant fails to answer the non-stricken portion of the complaint within the time allowed by the court. However, as the court further observed, it never directed defendant to answer within a specific period of time. As a result, the court determined that the clerk properly refused to enter a default. The court issued an order on April 8, 2015. The court denied defendant’s motion for summary judgment, but granted summary adjudication as to some causes of action. The court directed defendant to file an answer to the third amended complaint