Laskey v. Charles Industries
Filed 3/11/09 Laskey v. Charles Industries CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
LAURIE MARIE LASKEY, Plaintiff and Appellant, v. CHARLES INDUSTRIES LTD., Defendant and Respondent. | A123799 (Sonoma County Super. Ct. No. SCV-242051) |
Plaintiff filed a notice of appeal from an order sustaining without leave to amend the demurrer interposed by defendant to plaintiffs amended complaint. Defendant has moved that the appeal should be dismissed because plaintiff has purported to appeal from a non-appealable order. Plaintiff filed opposition to the motion.
Defendants motion to dismiss is sound. An order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed. (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.) The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) If an appeal is purportedly taken from an order that is not statutorily authorized, dismissal is required. (E.g., Rossi v. Caire (1922) 189 Cal. 507, 508; ArtMovers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645; Redevelopment Agency v. Goodman (1975) 53 Cal.App.3d 424, 429; Adohr MilkFarms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 86, p. 146.)
We are advised that after filing her notice of appeal, plaintiff filed a motion in the trial court asking it to vacate the judgment, but the trial court declined to rule on plaintiffs motion, believing that the pending appeal divested it of jurisdiction. This is not true. The trial court is not divested of jurisdiction by an appeal from a nonappealable order. (Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124.) Thus, even without a dismissal of this appeal, the trial court retained jurisdiction to rule on plaintiffs motion and enter a final judgment. (Maxwell v. Superior Court (1934) 1 Cal.2d 294, 297.) If the trial court denies that motion, and is thereafter presented with a final judgment which is signed and entered, plaintiff may file an appeal from that judgment.
The motion is granted, and the purported appeal is dismissed.
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Richman, J.
We concur:
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Kline, P.J.
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Haerle, J.
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