Bielous v. Ngai CA1/2

Filed 8/26/20 Bielous v. Ngai CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

MICHAEL BIELOUS, Plaintiff and Respondent, A157990 v. ANTHONY K. NGAI, (San Francisco County Super. Ct. No. CGC-18-565661) Defendant and Appellant.

Plaintiff Michael Bielous obtained a default judgment against defendant Anthony Ngai. Ngai appeals, contending that punitive damages awarded as part of the judgment are not supported by substantial evidence. Bielous has moved to dismiss the appeal on the ground that Ngai’s notice of appeal was untimely. His motion is well taken. We therefore grant the motion and dismiss the appeal. BACKGROUND Procedural Background On April 10, 2018, plaintiff Michael Bielous filed a complaint against defendant Anthony Ngai for breach of contract, fraudulent inducement, and promissory fraud relating to a $150,000 promissory note. The complaint was served on Ngai on May 10, 2018.

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On May 21, 2018, Ngai served a Code of Civil Procedure section 998 offer in the amount of Bielous’s contract damages, attorney fees, and interest due on the promissory note.1 Bielous did not accept the offer, and Ngai apparently failed to respond to the complaint, resulting in his default. A default judgment prove-up hearing was held on February 7, 2019. That same day, the trial court entered a default judgment for Bielous that included $450,000 in punitive damages. Bielous served notice of entry of judgment the following day. On April 5, 2019—57 days after notice of entry of judgment—Ngai filed a “Motion To Set Aside And Vacate Void Default Judgment.” The motion was initially calendared for hearing on May 4, and then later continued to June 25 and again to July 9. On July 2, 2019, Ngai filed a notice of appeal. In light of this, the trial court took Ngai’s motion to vacate the default judgment off calendar. Bielous’s Motion to Dismiss the Appeal On July 9, 2020, Bielous filed a motion to dismiss Ngai’s appeal. He contends the appeal is untimely because the default judgment was entered on February 7, 2019, and notice of entry of judgment was served on February 8, but Ngai did not file his notice of appeal until July 2, well past the 60-day deadline set forth in California Rules of Court, rule 8.104(a)(1)(B).2 Bielous acknowledges Ngai’s April 5, 2019 motion to vacate the default judgment. He also acknowledges that pursuant to rule 8.108(c), the filing of a valid motion to vacate a judgment extends the timeframe for filing a notice of appeal by 90 days. According to Bielous, however, in order to be valid, the motion must be timely, and Ngai’s motion was untimely because it was not