Flores v. Del Sala

Filed 7/5/06 Flores v. Del Sala 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellants Joe Flores and Juan and Sylvia Atayde purport to appeal "from order on Demurrer and from all judgments and appealable orders in this action." Appellants raise several arguments in an effort to preserve their action for breach of a settlement agreement and various torts. Respondents urge dismissal of this appeal on the ground that no judgment or appealable order exists. We agree with respondents and therefore must dismiss the appeal.

Background

In a related case (Superior Court case No. M68145), appellants alleged 15 causes of action arising from business dealings between them and respondents. On May 21, 2004, the superior court sustained a demurrer to that lawsuit without leave to amend the complaint.[1] On June 8, 2004, appellants filed the present action, alleging breach of a settlement agreement regarding the same business disputes, breach of the covenant of good faith and fair dealing, intentional misrepresentation, and intentional infliction of "emotional, physical and financial distress." Respondents demurred, asserting res judicata and other defenses. At a hearing on July 30, 2004, the trial court sustained respondents' demurrer without leave to amend, ruling that the order dismissing M68145 was res judicata. On August 2, 2004, the court denied respondents' motion for sanctions.

Appealability

The threshold issue before us is whether this appeal may be maintained absent a judgment of dismissal. Appellants insist that this court may dispense with such a "mere formality" and construe "the order sustaining the demurrer without leave to amend" as the "functional equivalent" of a dismissal order. In the procedural circumstances before us, we cannot accord the trial court's rulings the liberal construction appellants seek.

In California, the right to appeal is governed by statute-- in particular, Code of Civil Procedure section 904.1.[2] In order to exercise that right, "an appellant must take an appeal from a statutorily declared appealable judgment or order." (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) It is the duty of appellate counsel to "ensur[e] that their appeal rights are perfected according to the applicable statutes and rules of court." (Jordan v. Malone (1992) 5 Cal.App.4th 18, 22.) "An appealable judgment or order is essential to appellate jurisdiction . . . ." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.) Accordingly, in the absence of an appealable order or judgment, we are without jurisdiction to act and must dismiss the appeal. (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369; accord, Allabach, supra, 46 Cal.App.4th at p. 1010.)

Under California Rules of Court, rule 2(a), a notice of appeal must be filed within set time limitations based upon the date judgment is entered. Entry of judgment is deemed to include an appealable order; in such a case, the statutory limitations are applied to the date on which the appealable order is entered in the permanent minutes. (Cal. Rules of Court, rules 2(f), 2(d)(2).) However, if the minute order directs that a written order be prepared, it is the date on which the ensuing signed order is filed that governs appellate timelines. (Cal. Rules of Court, rule (2)(d)(2).)

Here appellants face two procedural obstacles. First, the record contains neither a judgment nor an order. The minutes of July 30, 2004, which recorded the ruling on the demurrer, directed respondents' attorney to prepare the order. In such cases, "the entry date is the date the signed order is filed." (Rule 2(d).) But no such written order exists in the record before us. There is nothing for us to review. Second, even if the oral ruling or the entry in the minutes were treated as an order, it is not appealable. It has long been established that an order sustaining a demurrer without leave to amend is not appealable; an appeal must be taken from the ensuing judgment dismissing the case. (Lavine v. Jessup (1957) 48 Cal.2d 611, 614; I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)

Often we have construed an order sustaining a demurrer to incorporate a judgment of dismissal in the interests of judicial economy if there is no apparent prejudice to the respondents. (See, e.g., Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 290; Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 3.) We typically accord such leniency to a ruling that expressly includes a statement dismissing the case with prejudice. (See, e.g., Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590.) Here, however, there is no order--appealable or nonappealable-- dismissing the action, nor even the required written order sustaining the demurrer without leave to amend. In their docketing statement appellants represent that they are appealing from a judgment of dismissal entered August 2, 2004. But the only document filed by the court on that day was a "Ruling," consisting of nothing more than a denial of respondents' request for sanctions. As the record contains no judgment or order dismissing the case, this appeal is not properly before us.

Disposition

The appeal is dismissed. Respondents shall recover their costs.

______________________________

ELIA, Acting P.J.

WE CONCUR:

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BAMATTRE-MANOUKIAN, J.

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DUFFY, J.

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[1] The order dismissing M68145 was appealed to this court in H027795, of which we take judicial notice.

[2] This section, as relevant here, permits the filing of an appeal from "a judgment," other than an interlocutory judgment.