Foster v. Bd. for Professional Engineers and Land Surveyors

Filed 3/20/07 Foster v. Bd. for Professional Engineers and Land Surveyors 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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Michael Foster, whose license as a civil engineer was placed on probation by the Board for Professional Engineers and Land Surveyors, attempts to appeal the trial courts order granting in part and denying in part his petition for writ of administrative mandamus and remanding the case to the Board for further proceedings as to whether he must pay $35,000 in restitution to his former clients. He concedes the trial court expressly refused to enter a judgment. In the absence of an appealable judgment, we must dismiss the appeal.

FACT

There is only one pertinent and dispositive fact: there is no judgment.

DISCUSSION

Fosters curt response to the Attorney Generals request to dismiss the appeal seems to make three points: 1) the Attorney Generals failure to file a separate motion to dismiss the appeal pursuant to rule 41 of the California Rules of Court^[1] infers, at the least, Respondents concession that the instant appeal is from a final, appealable judgment; 2) the order is final as to the Boards determination that he was negligent; and 3) we should overlook the absence of a judgment and exercise our discretion to hear the appeal because the case is fully briefed and a judgment would be a mere formality.

Foster cites no authority for the proposition that the failure to file a motion to dismiss infers, implies, or otherwise suggests the order is appealable. The question of appealability is jurisdictional. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962.) Thus, the Attorney General cannot confer jurisdiction where there is none. Fosters first point is utterly without merit.

Next he insists that the part of the order upholding the negligence determination is final and therefore appealable. Not so. [A]n appeal cannot be taken from a judgment that fails to complete the disposition of all causes of action between the parties even if the causes of action disposed of by judgment have been ordered to be tried separately, or may be characterized as separate and independent from those remaining. [Citation.] Thus, the denial of a petition for writ of mandate is not appealable if other causes of action remain pending between the parties. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 (Griset).) In Griset, the Supreme Court disapproved of the two cases upon which Foster relies: California Teachers Assn. v. Board of Education (1980) 109 Cal.App.3d 738, 751; Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 190-191. (Griset, at pp. 697-698.)

To the extent there is any life left in either of the cases, they are inapposite. Unlike the order here, the courts in California Teachers Assn. v. Board of Education and Elmore v. Imperial Irrigation Dist. intended the denial of the writs of mandate to be a final disposition of the cases on their merits. Here the trial court expressly stated that it would not enter a judgment and remanded the case for further proceedings. Thus, there is no finality, no judgment, and nothing yet to appeal. [W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory. (Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101 (Belio).)

Finally, Foster urges us to hear his appeal in the interest of judicial economy. He asserts we have the discretion to resolve the case piecemeal. His authority rebukes any notion that an appellate court should entertain an appeal when there are issues left for resolution by the trial court. In all three of the cases cited by Foster, the orders were final in that there was nothing further in the nature of judicial action to be done and simply a judgment had not been entered; thus, the Courts of Appeal construed the orders as judgments. (Belio, supra, 33 Cal.App.4th at pp. 1101-1102; County of Santa Clara v. Redevelopment Agency (1993) 18 Cal.App.4th 1008, 1016, fn. 4; Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539 (Francis).) As the court observed in Francis, entering the judgment would be little more than a formality. (Francis, supra, 3 Cal.App.3d at p. 539.)

Here, by contrast, the further proceedings ordered by the court are far more than a formality. Rather, the remand to determine whether Foster will be required to pay $35,000 in restitution is a substantive litigation of his rights and obligations. He argued vigorously below that his fundamental right to due process had been trampled when he was ordered to pay restitution without notice of the claim, hardly a mere formality. Under the well-established principles of appellate review reiterated by the Supreme Court in Griset, we must dismiss the appeal of the nonappealable order.

The appeal is dismissed.

RAYE , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1] Now California Rules of Court, rule 8.54.