Orkin v. Yan

Filed 5/16/07 Orkin v. Yan CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

We must dismiss this appeal for lack of jurisdiction. Appellant Morgan Yan has attempted to appeal an order denying his motion for leave to file a cross-complaint. The order is not appealable.

I. discussion

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. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Interlocutory orders are not appealable. (Code Civ. Proc.,  904.1, subd. (a)(1).) An order denying leave to file a cross-complaint is an interlocutory order from which no appeal lies. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 496-497; Miller v. Stein (1956) 145 Cal.App.2d 381, 385-386.) A challenge to such an order must be made by petitioning for a writ of mandate, or appealing the final judgment. (Marx v. McKinney (1943) 23 Cal.2d 439, 444; Foots Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 901-902; Miller v. Stein, supra, at pp. 385-386; Conopco, Inc. v. Roll International (2d Cir. 2000) 231 F.3d 82, 85, fn. 2 [applying California law].)

Appellant states, in his opening brief, that the order denying his motion for leave to file a cross-complaint is appealable because the order is the equivalent of a final judgment. In support, he cites Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 118. Appellants citation to Sjoberg is difficult to comprehend, as the case undermines his position. In Sjoberg, the trial court dismissed a defendants claim for relief that the Supreme Court characterized as essentially a cross-complaint. (Id. at pp. 117-118.) The Supreme Court noted that [a] cross-complaint is not considered sufficiently independent to allow a separate final judgment to be entered upon it [citations], unless the judgment or order on the cross-complaint may be considered final as to some of the parties. (Id. at p. 118.) The high court dismissed the appeal upon concluding that dismissal of the defendants cross-complaint against the plaintiff was not a final judgment because the same parties remained in the case. (Ibid.) Likewise, the trial courts order here did not remove any parties from the case or otherwise constitute a final resolution of the litigation as to any party. The order was purely interlocutory, and thus not appealable.

Ii. disposition

The appeal is dismissed.

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Sepulveda, J.

We concur:

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Reardon, Acting P.J.

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Rivera, J.

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