The Motion and declaration to vacate judgment has bean schedule before the Default judgement against defendant has bean enter.
One can only appeal a final judgment, so if a judgment has not yet been entered, an appeal would be premature.
Even after the judgment has been entered, there would have to be grounds for an appeal (usually judicial error). If the defendant was not properly served with the summons and complaint, the defendant's only recourse is to make a motion to set aside default (and to vacate default judgment, if applicable).
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
I agree with the other lawyers, your course of action is to file a motion to set aside the default and you will need a good reason as to why you did not appear in the first instance? Good Luck.
Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.
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It appears to me that there has been a default entered by the Court Clerk, at the plaintiff's request, for your failure timely (within 30 days of proper service) to oppose the complaint that the plaintiff served and filed against you. Your motion to vacate the default sounds as if it is ripe - meaning timely. The court has apparently not entered a default judgment upon it's Clerk's default.
So why are you asking about an appeal from a judgment that has not been rendered? Other counsel are correct, a notice of appeal from a judgment that has not occurred is not timely and would necessarily be dismissed. I trust that you are challenging the Clerk's default via your motion to vacate based upon the plaintiff's failure to have personally served you with his or her complaint. You should make the plaintiff prove that he or she had you personally served, or that you evaded multiple attempts to personally serve you which you evaded, requiring them to "nail and mail" the complaint to you, ie. tape the complaint to your front door after several attempts to serve you and then mailed it to you.
The following answer represents the legal opinion of the attorney regarding a hypothetical situation. It is not intended as legal advise in an attorney/client situation. The answer to the question posed is not to be relied upon as legal advise. The questioner is advised to independently seek the counsel of a qualified lawyer with whom he or she can establish an attorney/client relationship.
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