Filed 12/20/18 Miller v. Valley State Prison Medical Staff CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Lisa M. Gamoian, Judge.

Hutton Frank Miller, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

Appellant, Hutton Frank Miller, a California state prisoner proceeding pro se, filed a civil action in Fresno County Superior Court against the medical staff of Valley State Prison alleging inadequate medical care in failing to provide treatment for nerve pain in his feet. Although appellant filed the complaint, he did not effectuate service on the defendants nor did he appear at the scheduled case management conference.[1]

On February 23, 2017, the trial court held an order to show cause hearing, but appellant failed to appear. Based on his failure to appear, the court, by way of an unsigned minute order, dismissed the action without prejudice. No further activity appears on the docket prior to appellant’s filing of a notice of appeal on April 20, 2017. We find that an unsigned minute order is not an appealable order, and therefore we lack jurisdiction and must dismiss the appeal.

Appellate courts have jurisdiction over a direct appeal where there is an appealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; Jennings v. Marralle (1994) 8 Cal.4th 121, 126 (Jennings) [an appealable order or judgment “is a jurisdictional prerequisite to an appeal”].) “A trial court’s order is appealable when it is made so by statute.” (Griset, supra, at p. 696; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [“right to appeal is wholly statutory,” citing Code Civ. Proc., § 904.1.].)

“[F]or a ‘dismissal’ to ‘constitute [a] judgment[] and be effective for all purposes’—including the right to appeal—it ‘shall be in the form of a written order signed by the court and filed in the action.’” (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 768, citing Code Civ. Proc., § 581d (emphasis in original).) “An order that is not signed by the trial court does not qualify as a judgment of dismissal under section 581d.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578 (Powell).) This has been the law for more than a half century. (Id. at p. 1578 [“‘prior to 1963, under section 581d a dismissal in the form of a[n unsigned] minute order was proper’”].)

In Powell, like here, the court issued an unsigned minute order dismissing the complaint for failure to prosecute. (Powell, supra, 197 Cal.App.4th at p. 1578.) As a result of the lack of a written order of dismissal signed by the trial court, the appellate court held that the motion to set aside the judgment was premature because there was no judgment to set aside nor was there a final judgment to vest the appellate court with jurisdiction. (Ibid.)

In Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225, 1234, footnote 5, the Court of Appeal addressed whether a practice of the Los Angeles Superior Court, whereby the clerk would stamp a minute order dismissing an action with the judge’s signature, satisfied the requirements of Code of Civil Procedure, section 581d. The Court of Appeal concluded the practice “arguably complies with the literal requirements of section 581d” but “does little to further the rationale for requiring final orders of dismissal to be accomplished by written, signed court order rather than by minute order.” (Brehm, supra, at p. 1234, fn. 5.) The Brehm court cautioned: “We encourage trial courts to avoid this issue in the future by using a separate written order of dismissal, signed by the court and filed in the action, to conclude a case, rather than relying on a signed or stamped minute order.” (Ibid.)

Here, there was no attempt to sign or stamp the minute order dismissing the action. Unlike Brehm, the minute order in this case is not signed, and unquestionably fails to comply with the requirements of Code of Civil Procedure, section 581d. For this reason, the unsigned minute order here is not appealable. Absent a basis for exercising jurisdiction, we have no choice but to dismiss the appeal. (Jennings, supra, 8 Cal.4th at p. 126 [reviewing court must raise jurisdictional issue on its own whenever a doubt exists as to whether appeal is taken from a final judgment or appealable order]; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [appellate court “must dismiss an appeal from a nonappealable order”].)

disposition

The appeal is dismissed for lack of jurisdiction. In the interests of justice, no costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)