Filed 7/17/17 Cody v. Bank of America CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Trinity)
----




LEON CODY,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.


C081544

(Super. Ct. No. 13CV011)


Leon Cody and Darlene Cody (the Codys) purport to appeal from an order on a motion for summary judgment the trial court granted in favor of defendant Bank of America, N.A. (Bank of America). Although not itself appealable, an order granting summary judgment is sometimes deemed to lie from a subsequently entered judgment. (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 539.) Here, however, the judgment was entered after the trial court recalled the order from which the Codys attempt to appeal. Because the Codys’ notice of appeal relates to a nonappealable order that was recalled, we dismiss their appeal.
BACKGROUND
In July 2014, the Codys filed their third amended complaint for violation of the California Homeowners Bill of Rights (HBOR) and cancellation of instruments. Bank of America demurred and the trial court sustained the demurrer as to the cause of action for cancellation of instruments. Bank of America moved for summary judgment on the HBOR claim.
The trial court issued a ruling on summary judgment in which it determined there were no triable issues of fact and Bank of America was entitled to dismissal of the action. Although the trial court’s ruling determined the Codys’ third amended complaint did not state any viable causes of action, the ruling contemplated subsequent entry of a judgment to dismiss Bank of America from the action. In conflict with the ruling, the trial court also issued an order that dismissed the entire action, including another defendant: Nationstar Mortgage LLC.
Before entry of any judgment, the Codys filed their only notice of appeal from the order on summary judgment entered on their third amended complaint.
The trial court subsequently requested “limited briefing on the summary judgment matter on the question whether the Order should be recalled and an amended order issued in its place, consistent with the Ruling.” After a hearing on the matter, the trial court recalled the original order and issued an amended order that dismissed the action only as to Bank of America. The amended order again contemplated subsequent entry of judgment and directed counsel for Bank of America to draft the judgment. To explain the basis for the amended order, the trial court issued a “ruling on motion for reconsideration, motion to amend, and for corrected judgment.” In its ruling, the trial court explained the original order dismissing the entire action was in conflict with its ruling dismissing only Bank of America. As to plaintiffs’ motion for leave to amend, the trial court denied the motion because the proposed fourth amended complaint “comprises nothing more than a repeat of earlier generations of the complaint, and contains no new evidence that could not have been discovered prior to the motion for summary judgment.”
The court subsequently entered a judgment dismissing Bank of America from the action.
DISCUSSION
“The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126–127.) Whenever doubt exists regarding the appealability of a judgment or order, this court must consider the issue on its own initiative. (Ibid.) Upon consideration, we conclude the appeal must be dismissed.
Here, the Codys purport to appeal from an order granting summary judgment. An order granting summary judgment is not appealable. An appeal lies only from a judgment of dismissal. (Modica v. Merin (1991) 234 Cal.App.3d 1072, 1074.) Some courts have ameliorated the harshness of this rule by construing “the order granting summary judgment to incorporate a judgment in the interests of justice and to avoid delay.” (Francis v. Dun & Bradstreet, Inc., supra, 3 Cal.App.4th at p. 539.) However, construing an order granting summary judgment to encompass an appealable judgment makes sense only if the judgment actually relates to the appealed-from order. (See ibid. [contemplating the appealable judgment would be entered on the order granting summary judgment].)
The Codys’ notice of appeal relates to an order the trial court expressly recalled. In other words, the Codys’ appeal purports to challenge an order the trial court replaced with a substantively different ruling. Even if the original order granting summary judgment were itself appealable, that original ruling was superseded. When an appealable order or judgment has been substantially modified, a new notice of appeal must be filed to challenge the new appealable order or judgment. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842-843.)
DISPOSITION
The appeal is dismissed. Bank of America, N.A., shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
MURRAY, J.