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Chhin Sar et al v. Edwin L. Oneto

October 30, 2012

CHHIN SAR ET AL., PLAINTIFFS AND RESPONDENTS,
v.
EDWIN L. ONETO, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. 05AS05547)

The opinion of the court was delivered by: Robie , J.

Sar v. Oneto

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Edwin L. Oneto, Jr., brings this judgment roll appeal from the superior court's order denying his motion to set aside a default judgment against him. We find no error and affirm.

BACKGROUND

Oneto has elected to proceed on a clerk's transcript (Cal. Rules of Court, rule 8.122); thus, the appellate record does not include a reporter's transcript of the hearing that gave rise to the order challenged in this appeal. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

Given the meager state of the record on appeal, we summarize the relevant facts chiefly from the order which is the subject of Oneto's appeal.

Plaintiffs Chhin Sar and Sous Ka filed this personal injury action in 2005. Neither the original complaint nor any other complaint appear in the record on appeal.

The original summons and complaint misspelled Oneto's surname; the original complaint named Edwin L. Onetto, Jr., as a defendant. The proof of service nonetheless reflects that Oneto was personally served with the original complaint and summons on April 5, 2006, at his home located at 9921 Highway 88, Jackson.*fn1 Oneto apparently later challenged that service, asserting that his correct address is 9919 Highway 88, Jackson. But the trial court found that Oneto was "actually served, despite his attempt to evade service" inasmuch as the declaration of the process server reflects that the area is very rural, with rural mailboxes and long country roads, that the process server located Oneto by asking neighbors where he lived, and that he confirmed Oneto's identity when he personally spoke with Oneto and served him with the legal documents.

Later, plaintiffs realized the misspelling of Oneto's name, and a second amended complaint and summons with the correct spelling was issued; it, too, was personally served on Oneto. Oneto never filed a responsive pleading.

In January 2007, the clerk entered Oneto's default and default judgment. Apparently and mistakenly believing that no summons on the second amended complaint had been issued with the correct spelling of Oneto's name, the superior court clerk applied for an order setting aside entry of the default judgment. Based on the clerk's application, the trial court (by Judge Loren McMaster) ordered the default and judgment vacated on May 6, 2008.

In June 2008, plaintiffs' attorney submitted an "attorney compliance statement" in anticipation of participating in a hearing by telephone conference, in which he indicated that all defendants had "answered ...


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