Moore v. Lamarque
Filed 10/16/06 Moore v. Lamarque CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THOMAS EUGENE MOORE, Plaintiff and Appellant, v. ANTHONY LAMARQUE et al., Defendants and Respondents. | H029066 (Monterey County Super.Ct.No. M67689) |
Plaintiff Thomas Eugene Moore, representing himself in propria persona, filed suit in November 2003 against the warden of Salinas Valley State Prison (Anthony A. Lamarque), and against other prison officials. The complaint alleged damages arising out of being placed on “C” status at the prison, which resulted in Moore being denied yard access, outdoor exercise, and fresh air. Moore thereafter (in March 2005) filed a motion for leave to amend his complaint to assert a new claim and to name P. Mandeville as an additional defendant previously identified as a Doe defendant. The court denied Moore’s motion and likewise denied Moore’s motion for reconsideration. Moore filed a notice of appeal from the order denying leave to amend. He later filed an amended notice of appeal, referencing both the order denying leave to amend and the order denying his motion for reconsideration.
After completion of briefing on appeal, this court (on September 6, 2006) advised the parties in writing that it appeared that the purported appeal was taken from a nonappealable order; we therefore requested that Moore, as appellant, show cause within 15 days by letter brief why this appeal should not be dismissed. The time for submitting briefing having now elapsed, and Moore having submitted no timely letter brief in response to our order to show cause,[1] we now address the appealability issue.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Although respondents here did not raise a challenge to Moore’s appeal on the basis that it addressed a nonappealable order, we cannot overlook this procedural defect: “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citations.]” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.)
Here, it is plain that the matters from which an appeal was taken--an order denying leave to amend and an order denying reconsideration of that ruling--were nonappealable. An order denying leave to amend is nonappealable. (Central Bank v. Transamerica Title Ins. Co. (1978) 85 Cal.App.3d 859, 870, disapproved on another ground in Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1080; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) 2:247, p. 2-116 (rev. # 1, 2005): “An order on a motion for leave to amend a pleading is not immediately appealable. . . . [T]he right of appeal lies from the final judgment”].) Likewise, an order denying leave to substitute parties is nonappealable. (Randall v. Beber (1950) 101 Cal.App.2d 179, 182.) In his case information sheet filed with this court, Moore claimed that the appeal was taken from an order after judgment appealable under Code of Civil Procedure section 904.1, subdivision (a)(2).[2] However, this was clearly not the case.
Accordingly, since the appeal was taken from two nonappealable orders--the order denying motion for leave to amend complaint and order denying motion to reconsider--this court lacks jurisdiction to hear the matter. We therefore dismiss the appeal on our own motion.
DISPOSITION
The appeal taken by Moore from the nonappealable orders is hereby dismissed.
Duffy, J.
WE CONCUR:
Mihara, Acting, P.J.
McAdams, J.
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[1] This court received Moore’s late-filed letter brief on September 25, 2006. Its untimeliness notwithstanding, we have considered this letter brief. It does not present any argument from which we might conclude that the order denying leave to amend is appealable. To the contrary, the cases cited by Moore did not concern appealability, and none involved an appeal from an order denying leave to amend where the plaintiff’s prior complaint remained extant. In each of the cases cited by Moore (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316; Berman v. Bromberg (1997) 56 Cal.App.4th 936), the plaintiff had filed a proper appeal from an appealable order (dismissal after sustaining a demurrer to an entire complaint without leave to amend) or judgment.
[2] “An appeal, other than in a limited civil case, may be taken from any of the following: . . . From an order made after a judgment made appealable by paragraph (1).” (Code Civ. Proc., § 904.1, subd. (a)(2).)
