Filed 2/9/21 Etame v. Ermel CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARTIAL ETAME, B303939
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC679337)
v.
WOLFRAM ERMEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Patricia Nieto, Judge. Dismissed.
Wolfram Ermel, in pro. per. for Defendant and Appellant.
Martial Etame, in pro. per. for Plaintiff and Respondent.
_____________________________
Wolfram Ermel appeals from the denial of his motion to
vacate the default judgment entered against him. We dismiss
Ermel’s appeal because it is untimely. Moreover, Ermel has
failed to specify any grounds entitling him to relief.
PROCEDURAL BACKGROUND
On October 12, 2017, Martial Etame filed a complaint
against Ermel alleging causes of action for breach of contract,
fraud, and conversion. The complaint alleged Ermel and Etame
formed a business buying, selling, and restoring cars but the
friends had a falling out in August 2017. Etame alleged Ermel
then unlawfully converted five cars owned by Etame that were
stored on Ermel’s property. Both Etame and Ermel were self-
represented. Ermel filed a responsive pleading to the complaint
on November 22, 2017, but thereafter failed to appear for a case
management conference and two order to show cause hearings
without excuse. As a result, the trial court struck his answer on
October 30, 2018.
The court entered default against Ermel on January 28,
2019, but denied Etame’s application for default judgment
because he failed to properly plead specific damages. The order
specified the default would be effectively vacated if an amended
complaint were to be filed because it would allow Ermel an
opportunity to submit a responsive pleading. Etame filed a first
amended complaint alleging a cause of action for fraud and
specifying damages of $380,000. Ermel failed to respond and a
default was entered on the first amended complaint. Etame’s
subsequent application for default judgment proved damages
totaling $342,000 for the value of the cars and parts in Ermel’s
possession. On June 17, 2019, the trial court entered a default
judgment against Ermel for $342,000.
2
On November 6 and 18, 2019, Ermel filed two sets of
papers to set aside or vacate the default judgment. Etame
opposed. The trial court observed the papers filed by Ermel were
disorganized and confusing, clearly violated the length
requirements set out in rule 3.1113 of the California Rules of
Court, contained numerous extraneous requests, and were
interspersed with irrelevant evidence, commentary, and statutes.
Noting that parsing the papers for properly raised evidence and
arguments was “beyond what the Court is obligated to do,” the
trial court nevertheless provided a thorough analysis of the
issues raised by Ermel in a five-page, single-spaced order. After
an extensive review of the proceedings, the trial court found
Ermel “clearly had notice of the suit and the hearings that led to
his dismissal, and simply chose to stop participating in misguided
protest.” Further, Ermel filed the motion to vacate over five
months after the default was taken. He provided no explanation
for the delay. The trial court concluded there was no basis on
which Ermel could obtain relief from default. On January 10,
2020, it denied the motion to vacate, and Ermel appealed on
January 23, 2020.
DISCUSSION
I. Ermel’s Notice of Appeal Was Untimely
Etame moved to dismiss Ermel’s notice of appeal, arguing
it was untimely because it was filed more than 60 days from the
time the notice of entry of judgment was served on him. (Cal.
Rules of Court, rule 8.104(a)(1)(B).) Etame’s motion failed to take
into account Ermel’s motion to vacate the judgment, which
extends the time to file an appeal. (Cal. Rules of Court, rule
8.108(c).)
3
Rule 8.108(c) of the California Rules of Court provides:
“If, within the time prescribed by rule 8.104 to appeal from the
judgment, any party serves and files a valid notice of intention to
move—or a valid motion—to vacate the judgment, the time to
appeal from the judgment is extended for all parties until the
earliest of: [¶] (1) 30 days after the superior court clerk or a party
serves an order denying the motion or a notice of entry of that
order; [¶] (2) 90 days after the first notice of intention to move—
or motion—is filed; or [¶] (3) 180 days after entry of judgment.”
By our calculation, Ermel was required to appeal from the
trial court’s denial of his motion to vacate by the earliest of:
February 10, 2020 (30 days after the January 10, 2020 denial
order was served),1 February 4, 2020 (90 days after the November
6, 2019 motion to vacate was filed), or December 16, 2019 (180
days after entry of the June 17, 2019 judgment). Ermel’s
January 23, 2020 notice of appeal was untimely because it was
filed over one month after December 16, 2019. Thus, we are
required to dismiss Ermel’s appeal. (Cal. Rules of Court, rule
8.104(b) [“If a notice of appeal is filed late, the reviewing court
must dismiss the appeal.”].)
1 The trial court ordered Etame to give notice of the order
denying the motion to vacate. The record does not disclose when
Etame served Ermel. However, it is clear Ermel received notice
of the order because he filed a notice of appeal shortly after the
order was entered. In any event, the specific date of service does
not change our conclusion that Ermel’s notice of appeal was
untimely because it was filed over one month after the earliest
deadline under California Rules of Court, rule 8.108(c).
4
II. Ermel Failed to Demonstrate Error
In any case, Ermel has failed to meet his burden to
demonstrate reversible error. (State Farm Fire & Casualty Co. v.
Pietak (2001) 90 Cal.App.4th 600, 610 (Pietak).) A Court of
Appeal presumes the trial court’s judgment or order is correct.
(Ibid.) The appellant must overcome this presumption and
demonstrate reversible error. (Ibid.) “[T]o demonstrate error, an
appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record.”
(City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–
287.) “We are not bound to develop appellants’ arguments for
them.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 830; Opdyk v. California Horse Racing Bd. (1995) 34
Cal.App.4th 1826, 1830–1831, fn. 4.) “When an appellant fails to
raise a point or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784–785; Loranger v. Jones (2010) 184 Cal.App.4th 847, 858,
fn. 9.) These requirements apply equally to appellants who
represent themselves on appeal. (McComber v. Wells (1999)
72 Cal.App.4th 512, 522–523.)
On appeal, Ermel’s briefs suffer from far greater
deficiencies than those noted by the trial court about his motion
to vacate. Indeed, we cannot discern from Ermel’s lengthy
opening brief any cogent argument related to the order denying
the motion to vacate. It appears the bulk of his brief is devoted to
refuting the damages claimed by Etame, arguing extraneous
points, and summarizing the proceedings contained in the three-
5
volume clerk’s transcript.2 We thus treat Ermel’s arguments,
such as they are, as waived.
DISPOSITION
Ermel’s appeal, filed January 23, 2020, is dismissed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
STRATTON, J.
2 On October 27, 2020, Ermel sought permission to file a
seven-page “cover letter” to the reply brief describing deficiencies
in the respondent’s brief and including various color photographs
of the cars in question. We deny Ermel permission to file the
cover letter and photographs.
6