Pellegrini v. Weiss

Filed 8/30/07 Pellegrini v. Weiss CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

David J. Weiss, et al. (Weiss) filed multiple appeals from a judgment entered in favor of George Pellegrini, et al. (Pellegrini) in this consolidated action. While the appeals were pending in this court, Pellegrini filed a motion to dismiss two of the appeals as untimely and as taken from an unappealable order. Finding appeal H029667 to be taken from an unappealable order, we will dismiss it. Weisss appeal H029988 from the denial, by operation of law, of the judgment notwithstanding the verdict (JNOV) is untimely, so we will dismiss that appeal as well.

Factual and Procedural Background

On May 8, 2003, Weiss filed a complaint against Pellegrini. On July 25, 2003, Pellegrini filed a complaint and cross-complaint against Weiss. After the trial court consolidated the complaints filed by Weiss and Pellegrini into one action, and bifurcated the issues, a jury found in favor of Pellegrini on the legal issues and the trial court found in favor of Pellegrini on the equitable ones. The relevant sequence of events is as follows:

On October 5, 2005, the trial court entered judgment on the jury and court verdicts.

On October 19, 2005, Pellegrini served a notice of entry of judgment on the October 5, 2005 judgment.

On November 1, 2005, Weiss filed a motion for new trial and a motion for judgment notwithstanding the verdict. The same day, Weiss filed a motion to prepare statement of decision.

On November 29, 2005, the trial court granted Weisss motion to issue a

statement of decision and directed Pellegrini to prepare it.

On December 15, 2005, Weiss filed a notice of appeal, case number H029667, appealing from the Judgment after jury trial entered October 17, 2005.

December 16, 2005, was the 60th day after the notice of entry of judgment of the October 5 judgment. That day, the JNOV and motion for new trial came on for hearing, but the trial court continued the motions until February 16, 2006. The court, sua sponte, then vacated the October 5, 2005 judgment to permit the filing of the statement of decision.

On January 13, 2006, the trial court entered a new judgment. On the same day, but unrelated to the new judgment, Weiss filed a second notice of appeal, case number H029772, appealing from the Denial of Motion for JNOV by operation of law on December 16, 200[5].

On January 24, 2006, Pellegrini served a notice of entry of judgment of the January 13, 2005 judgment.

On March 7, 2006, the trial court issued a decision denying the JNOV.

On March 15, 2006, Weiss filed a third notice of appeal, case number H029988, appealing from the January 13, 2006 judgment, the order denying the JNOV and the denial of the JNOV by operation of law.

While the appeals were pending, the respondent filed a motion to dismiss which we now consider.

Discussion

In his motion Pellegrini contends that because the October 15, 2005 judgment was vacated, the judgment is not appealable. He further contends that because the JNOV was denied by operation of law in December 2005, the March 15, 2006 notice of appeal from the JNOV denial by operation of law is untimely. Weiss does not dispute either of Pellegrinis points. Instead, Weiss correctly points out that even if the motion to dismiss were granted in its entirety, it would have no impact on the substantive issues on appeal.

This is a situation where Weiss, out of abundance of caution, filed multiple notices of appeal in order to preserve his appellate rights. He can hardly be faulted for his caution.

Appeal H029667 from the October 5, 2005 Judgment

Pelligrini contends, and Weiss does not dispute, that this judgment is no longer appealable because it has been vacated and superseded by the trial courts judgment entered on January 13, 2006. It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute. [Citations.] (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The primary statutory basis for appealability in civil matters is limited to the judgments and orders described in section 904.1 of the Code of Civil Procedure, which essentially codifies the one final judgment rule and provides that only final judgments are appealable. The one final judgment rule is based on the theory that piecemeal appeals are oppressive and costly, and that optimal appellate review is achieved by allowing appeals only after the entire action is resolved in the trial court. Ordinarily, there can be only one final judgment in an action and that judgment must dispose of all the causes of action pending between the parties. [Citation.] [Citation.] (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365-1366.) By definition, the vacated October 5, 2005 judgment does not dispose of the action because it was superseded and has no effect. As such, the order appealed from in case number H029667 is nonappealable and must be dismissed.

Appeal H029988 from the Denial by Operation of Law of the Motion for JNOV

Pellegrini next contends that this appeal, filed on March 15, 2006, is not timely from the denial of the JNOV because the JNOV was denied by operation of law in December 2005.[1]California Rules of Court, rule 8.108(c)(2) states, Unless extended by (e)(2), the time to appeal from an order denying a motion for judgment notwithstanding the verdict is governed by rule 8.104.[2] Rule 8.104 provides for 60 days from the date or service of the notice of entry of an appealable order in which to file a notice of appeal. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1480.) Assuming, for the purposes of this motion to dismiss, that the JNOV was denied by operation of law on December 16, 2005, [3] and that the time to appeal is calculated from December 16, even though no notice of such denial was ever prepared or served, Weiss had until February 14, 2006 to file the notice of appeal. Because the notice of appeal in case number H029988, purporting to appeal from the denial of the JNOV by operation of law, was not filed until March 15, 2006, that portion of the notice is untimely. That portion of the appeal in case number H029988 purporting to appeal the denial of the JNOV by operation of law must, therefore, be dismissed.

As Weiss rightly points out, however, the possible denial of the JNOV by operation of law remains an issue on appeal by virtue of his second appeal, case number H029772, filed January 13, 2006. This appeal, which lists as the sole subject of the appeal the possible denial by operation of law of the JNOV, was filed within 60 days of December 16, 2005, and is not challenged by the instant motion to dismiss.

Disposition

Case number H029667 is dismissed as taken from a nonappealable order. That portion of the appeal, case number H029988, purporting to appeal from the denial of the JNOV by operation of law is dismissed as untimely. Appeals H029772 and H029988

shall proceed in due course on all remaining issues consistent with this opinion and shall be considered together for the purposes of oral argument and disposition.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1]Pellegrini incorrectly lists the date that the JNOV was denied by operation of law as December 31, 2005. The actual date the motion would have been denied by operation of law was 60 days from the date Pellegrini served the Notice of Entry of Judgment, or December 16, 2005. (See Code Civ. Proc., 660, 629.)

[2] All further rules references will be to the California Rules of Court unless otherwise specified.

[3]We need not, for our purposes here, determine whether the JNOV was in fact denied by operation of law on December 16, 2005, or whether the trial courts order continuing the motion until February or the order vacating the judgment extended the time to decide on the JNOV.