Barker v. Di Lando CA1/2

Filed 11/23/20 Barker v. Di Lando CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

KENNETH BARKER, Plaintiff and Appellant, A159556 v. ROBINSON DI LANDO, et al., (Contra Costa County Super. Ct. No. Defendants and Respondents. MSC1901582)

Respondents Robinson Di Lando and Panda Restaurant Group, Inc. have moved to dismiss the appeal of appellant Kenneth Barker on the ground that he has appealed from a nonappealable order. Respondents also request monetary sanctions on the ground that appellant has filed a frivolous appeal. Because we conclude the trial court’s order vacating a default entered against respondents was not appealable, we shall dismiss the appeal. However, we will decline respondents’ request for sanctions. BACKGROUND This appeal, which appellant filed in propria persona, arises from an action alleging discovery abuses (current action). The current action is derived from a pending action (original action), in which appellant alleged that he was injured after biting into a foreign object in food he had purchased

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at a Panda Express restaurant. (Barker v. Panda Restaurant Group, Inc.) (Case No. C17-01774.) In the current action, appellant filed a complaint for abuse of process on August 2, 2019, challenging respondents’ allegedly overbroad subpoenas for appellant’s medical records in the original action. Respondents’ response to the complaint in the current action was due on Friday, October 25, 2019. On October 25, respondents attempted to file a demurrer to the complaint at the Contra Costa County Court Clerk’s Office. However, the clerk’s office returned the demurrer, stating that the names of the defendants must match the summons and complaint exactly. By the time respondents learned the demurrer had been rejected, it was too late to correct the caption the same day. Early on the morning of Monday, October 28, 2019, appellant filed separate requests against Robinson Di Lando and Panda Restaurant Group, checking boxes requesting both entry of default and clerk’s judgment in the current action, and also requesting “$5.000.000.00” in damages. On that same date, the clerk checked a box on each of the request forms that stated, “Default entered as requested . . . .” Later in the day, when respondents again attempted to again file their demurrer with the names corrected, the clerk’s office rejected the demurrer because defaults had already been entered in the action. On October 29, 2019, appellant attempted to file a clerk’s default judgment, which was marked received, but was not filed. The court’s register of actions contains a November 8, 2019 entry indicating that appellant’s October 29 request for a clerk’s judgment could not be filed. On November 7, 2019, respondents moved ex parte to vacate the default and any clerk’s judgment entered on October 28. After the court