Zhang v. Shao CA4/3

Filed 4/1/21 Zhang v. Shao CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

TING ZHANG et al.,

Plaintiffs and Respondents, G058045

v. (Super. Ct. No. 30-2017-00924225)

XIAO SHAO et al., OPINION

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, Nathan
R. Scott, Judge. Dismissed.
Law Offices of Angela Swan and Angela Swan; Travis M. Poteat; Sheila
Mojtehedi for Defendants and Appellants.
The Law Offices of Sam X.J. Wu, Sam X.J. Wu and Victor Russame for
Plaintiffs and Respondents.
 INTRODUCTION
Xiao Shao, Xiao Zheng, Shedoor International, Inc., and Shedoor
International, LLC (Appellants), filed a notice of appeal after the trial court entered
judgment in favor of Ting Zhang, Zhiqin Song, and Lan Fang (Plaintiffs) on a wage-and-
hour complaint. Judgment was entered in March 2019, but Appellants did not file their
notice of appeal until July 2019.
The grounds of this appeal are not entirely clear. But whatever they are, it
is clear that this appeal is from non-appealable orders, untimely, or both. We can review
only judgments and appealable orders. The only judgment rendered in this case was
entered in March 2019. Appellants did not timely appeal from this judgment, and we
cannot review it now. Likewise, they cannot resurrect a dead appeal by making a motion
to vacate an order made before judgment was entered and then appealing from the order
denying that motion. The appeal is therefore dismissed.
FACTS
Plaintiffs/Respondents filed a wage-and-hour complaint against
Defendants/Appellants in June 2017 and a first amended complaint the same month.
In February 2018, Plaintiffs filed a motion to deem requests for admissions
admitted. The motion was unopposed and granted on June 18, 2018. Appellants’ motion
for reconsideration of the order granting the motion was denied on September 17, 2018.
In October, Plaintiffs moved for summary adjudication of six of the eleven
causes of action of the first amended complaint. Appellants applied ex parte on
December 17 to continue the hearing on the summary adjudication motion; the court
denied that application on December 18.1 Appellants filed another ex parte application to
continue the summary adjudication hearing on December 27. The hearing on this second
application was continued from December 28 to December 31.

1
Appellants’ counsel did not turn up at the ex parte hearing until it was over and Plaintiffs’ counsel
had left the courtroom.

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 The court heard both the summary adjudication motion and the ex parte
application for a continuance on December 31. It took both of them under submission.
On January 2, 2019, it denied the ex parte application to continue the hearing and granted
the summary adjudication motion, based in large part on the deemed-admitted requests
for admission.
On January 7, 2019, Plaintiffs dismissed the five causes of action not
covered by their summary adjudication motion.
On January 14, Appellants filed a motion to reconsider the court’s denial of
their second ex parte application to continue the trial, the application heard on December
31. The hearing for the reconsideration motion took place on February 28, 2019, and
reconsideration was denied on that date.
Plaintiffs having dismissed the five remaining causes of action on January
7, the court entered judgment for damages in their favor on March 8, 2019, as there was
nothing left for trial. Plaintiffs filed and served a notice of entry of judgment on March
11, 2019.
Meanwhile, on February 27, 2019, Appellants moved under Code of Civil
Procedure section 473, subdivision (b), to vacate the January 2019 order granting
summary adjudication2 and, in a separate motion, to withdraw their deemed admissions.
(Code Civ. Proc., § 2033.300). The court denied both motions on May 20, 2019. The
court ruled that Appellants had not shown entitlement to discretionary relief under Code
of Civil Procedure section 473 for the summary adjudication order and that the motion to
withdraw deemed admissions was moot.

2
The caption of the motion stated “Notice of Motion to Set Aside and Vacate Judgment and
Defendants’ Motion to Vacate Judgment for Summary Adjudication, Granted January 2, 2019.” January 2 is the
date on which the court granted summary adjudication. Judgment was not entered until March 2019, after the
motion to vacate was filed.

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 Appellants filed their notice of appeal on July 19, 2019. They identified the
date of the order being appealed from as May 20, 2019. The boxes for “judgment after
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an order granting summary judgment” and “other – motion to vacate summary judgment
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pursuant to CCP 663 on ground of 473(b)” were checked. As to the latter box, no code
section authorizing the appeal was specified, as required.
DISCUSSION
Appellants have identified three issues for our review: first, whether the
court erred in denying their two ex parte applications to continue the hearing on the
motion for summary adjudication and in denying the motion to reconsider the court’s
denial of the second ex parte application; second, whether the court erred in denying the
February 2019 motion to vacate the summary adjudication order; third, whether the court
erred when it denied Appellants’ motion to withdraw their answers to their requests for
admissions, which had been deemed admitted. In the argument section of their opening
brief and in their reply, Appellants also argue that we should reverse the order granting
summary adjudication and the judgment.
Our jurisdiction is limited to judgments and appealable orders. (Code Civ.
Proc., § 904.1, subd. (a); Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221,
1226.) Moreover, we cannot review any judgment or order – even if appealable – that is

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On the notice itself, the date is nearly illegible. Appellants’ counsel subsequently filed a
declaration with this court confirming that the correct date was May 20, 2019.
It appears from our records that a prior notice of appeal from the March judgment was filed on
June 17, 2019, case No. G057902. The appeal was summarily dismissed for untimeliness by order of this court
issued on August 29, 2019.
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Code of Civil Procedure section 663 provides: “A judgment or decree, when based upon a
decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and
vacated by the same court, and another and different judgment entered, for either of the following causes, materially
affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or
erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the
judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not
consistent with or not supported by the special verdict.” Code of Civil Procedure section 663a sets out the timetable
and other requirements for making such a motion, none of which Appellants observed.

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not mentioned in the notice of appeal. (Sole Energy Co. v. Petrominerals Corp. (2005)
128 Cal.App.4th 212, 239, 240; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th
77, 89-90; Faunce v. Cate (2013) 222 Cal.App.4th 166, 170 [“‘Our jurisdiction on appeal
is limited in scope to the notice of appeal and the judgment or order appealed from.’
[Citation.] We have no jurisdiction over an order not mentioned in the notice of
appeal”].) “Despite the rule favoring liberal interpretation of notices of appeal, a notice
of appeal will not be considered adequate if it completely omits any reference to the
judgment being appealed.” (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d
1041, 1045 (Shriver).) Finally, a notice of appeal must be filed within the time limits
prescribed by California Rules of Court, rule 8.104(1)(a). We do not have jurisdiction to
review untimely appeals. (Hersey v. Vopava (2019) 38 Cal.App.5th 792, 796-797.)
No summary judgment was entered in this case. The court granted
summary adjudication on six of the eleven causes of action in the first amended
complaint, leaving five causes of action to be decided. An order granting summary
adjudication is not appealable. (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court
(2003) 114 Cal.App.4th 309, 319.) It is not a final judgment, and it is not one of the
orders designated as appealable in the Code of Civil Procedure.
Plaintiffs dismissed the remaining causes of action in January 2019, and the
court entered judgment against Appellants in March. A notice of appeal filed in July
from a March judgment is untimely after a notice of entry of judgment has been served.
It is too late to appeal from the judgment now.
Appellants cannot now appeal from the order denying their motion to
vacate the ruling of January 2, 2019 – the order granting summary adjudication –

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Appellants have filed a document styled “Motion to Raise Point on Appeal Not Included in
Notice.” In other words, they want us to review the order denying their motion to withdraw their deemed
admissions, even though this order was not included in the notice of appeal. As stated above, we have no
jurisdiction to do so. California Rules of Court, rule 8.130(a)(2), cited by Appellants as authority for this motion,
applies to a notice to prepare a reporter’s transcript. It does not apply to a notice of appeal. The motion is denied.

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because an order granting summary adjudication is not appealable. “‘If the original
ruling is not final and appealable in its own right, then it is not a judgment. . . . “[An]
appeal may not be taken from a nonappealable order by the device of moving to vacate
the order and appealing from a ruling denying the motion.” [Citation.]’ [Citation.]” (J.
Weinrot & Son v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on other
grounds, County of Monterey v. Mahabir (1991) 231 Cal.App.3d 1650.)
California Rules of Court, rule 8.108(c) 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.” This rule does not apply here
because Appellants did not file a motion to vacate the judgment, which was entered on
March 8, 2019. Instead, they filed a motion to vacate the order granting summary
adjudication, entered on January 2, 2019, and they did so on February 27, 2019, before
judgment was entered. The time for Appellants to appeal the March 2019 judgment
under rule 8.104(a)(1)(B) – 60 days after service of a notice of entry of judgment – was
not extended by filing the motion to vacate.
The order denying the motion to withdraw the deemed requests for
admission was not specified in the notice of appeal as one of the orders from which
Appellants were appealing. The notice of appeal restricts our jurisdiction to review
proceedings in the trial court. If the notice does not identify an order, we cannot review
it. (See Shriver, supra, 217 Cal.App.3d at p. 1045.)

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 DISPOSITION
The appeal is dismissed. Appellants’ motion to add an item to the notice of
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appeal is denied. Respondents are to recover their costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

GOETHALS, J.

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On the day before oral argument in this matter, we were informed that one of the Appellants, Xiao
Shao, had settled with the Plaintiffs and was requesting to be dismissed from the appeal. Since the entire appeal is
dismissed, the request to dismiss Xiao Shao is moot.

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