Filed 11/8/21 Alaoui v. Vaynerman CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
AZIZ ALAOUI, B308421
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC699545)
YEVGENIY VAYNERMAN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Thomas D. Long, Judge. Dismissed.
Law Offices of D. Hess Panah & Associates and D. Hess
Panah, for Plaintiff and Appellant.
McNeil Tropp & Braun, Deborah S. Tropp, and Tracy L.
Breuer, for Defendant and Respondent.
This appeal fails for want of a signed order of dismissal or
final judgment in the appellate record.
I. BACKGROUND
As alleged in the complaint, plaintiff and appellant Aziz
Alaoui (Alaoui) and defendant and respondent Yevgeniy
Vaynerman (Vaynerman) were involved in an automobile
collision in April 2016. Approximately two years later, Alaoui
filed a complaint against Vaynerman alleging a single cause of
action for negligence. Vaynerman answered the complaint, and
the record suggests the parties engaged in an unspecified amount
of discovery.
The trial court held a final status conference in February
2020. Neither party appeared. The matter was called for trial
early the following month. Vaynerman was present; Alaoui was
not. The trial court issued a minute order dismissing Alaoui’s
complaint without prejudice pursuant to Code of Civil Procedure
section 581, subdivision (b)(5).1 The minute order dismissing the
complaint is not signed, and the record contains no judgment of
dismissal.
Alaoui subsequently filed a motion to set aside the
dismissal under Code of Civil Procedure section 473, which
argued he was entitled to relief because his failure to appear was
due to his attorney’s excusable neglect. Alaoui’s attorney, D.
Hess Panah (Panah), provided a declaration asserting Panah’s
office had been diligent in pursuing Alaoui’s rights, Panah was
unaware how the trial date had not been properly calendared,
1
Undesignated statutory references that follow are to the
Code of Civil Procedure.
2
and the error was excusable and setting aside the judgment
would not result in prejudice to Vaynerman.
Vaynerman opposed the motion, arguing Alaoui failed to
show excusable neglect. He noted inconsistencies in the motion,
he identified nine other cases in which Alaoui’s counsel filed
motions asserting excusable neglect as a reason for missing a
trial,2 and he argued he had been prejudiced by Alaoui’s behavior.
The trial court held a hearing 3 and later issued a minute
order denying the motion. The minute order explains that
insofar as Alaoui was seeking relief under the mandatory
provision of section 473, subdivision (b), such relief is not
available for dismissals attributable to a failure to prosecute.
The order recognizes the court has discretion to vacate the
dismissal under the discretionary provisions of section 473 if
Alaoui demonstrated the dismissal was entered as a result of
mistake, surprise, inadvertence, or excusable neglect, but the
court concluded Alaoui had not done so: a number of statements
in the motion were “demonstrably false,” counsel did not explain
how counsel diligently pursued Alaoui’s rights, and Vaynerman
was prejudiced in preparing for and appearing at trial. The court
concluded counsel's failure to appear was not a result of
excusable neglect but, as demonstrated by his filing of the same
motion in numerous cases, “a result of chronic mis-operation of
his law practice.”
2
Vaynerman attached copies of motions filed in four of those
other cases as exhibits.
3
The appellate record does not contain a transcript of the
hearing.
3
Alaoui appealed from the denial of the motion to set aside
the dismissal. On September 21, 2021, we invited the parties to
submit supplemental briefs addressing whether the absence of a
judgment or signed order of dismissal in the record requires
dismissal of the appeal.
II. DISCUSSION
Alaoui purports to appeal from the denial of his section
473(b) motion. The only statutory grounds authorizing such an
appeal would be as an appeal from a post-judgment order.
(§ 904.1, subd. (a)(2).) Perhaps it goes without saying, but there
must be a valid underlying final judgment when relying on the
statutory provision that authorizes an appeal from a post-
judgment order. (See, e.g., Generale Bank Nederland v. Eyes of
the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394; see also
Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578
(Powell).) There is no judgment in the appellate record here.
Alaoui counters that the order dismissing his complaint is
effectively a judgment. That would be true but for one key fact:
the order we have in the record—as we pointed out in our request
for supplemental briefing—is unsigned. (See, e.g., City of Los
Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7
Cal.App.5th 150, 157 [a dismissal order is appealable as a final
judgment when the order complies with section 581d, which
states “[a]ll dismissals ordered by the court shall be in the form of
a written order signed by the court and filed in the action . . . .”];
Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 768;
Powell, supra, 197 Cal.App.4th at 1577-1578.) Without a signed
order of dismissal (or a judgment), we lack jurisdiction to hear
4
this appeal and must dismiss it.4 (Munoz v. Florentine Gardens
(1991) 235 Cal.App.3d 1730, 1732.)
DISPOSITION
The appeal is dismissed. Vaynerman is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
4
Because we dismiss the appeal on jurisdictional grounds,
we need not resolve Vaynerman’s pending motions or Alaoui’s
request for judicial notice.
5