Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. LC068731 / 09E13582 Greg Keosian, Judge.
John Sweeney & Associates and John Sweeney for Plaintiff and Appellant.
Brenton, Orr, Duval and Buckingham, Kevin M. McCormick and Maureen Houska for Defendant and Respondent.
BIGELOW, P. J.
On June 18, 2003, Lee DiMartino met an acquaintance, James Burr, in the bar at Jack’s restaurant in Westlake Village. When they left the bar, Burr asked DiMartino to drive, and DiMartino agreed, taking the wheel of a Nissan Altima which had been rented by Cheryl Ostrander-Burr, the only person authorized under the rental agreement to drive the car. While DiMartino was driving Burr home, Burr became very angry at DiMartino. After that, the next thing DiMartino could remember was that he was “waking up in the back of a police cruiser;” the Nissan that DiMartino had been driving had collided with three other cars and a traffic signal pole.
On our own motion, we have taken judicial notice of the appellate record and opinion in DiMartino v. Ostrander (Dec. 19, 2008, B197830) [nonpub. opn.]), a related proceeding.
In June 2004, DiMartino filed a lawsuit arising from the accident. In November, DiMartino filed a first amended complaint against Burr, alleging that Burr had repeatedly hit DiMartino while they were in the Nissan, causing DiMartino to crash. DiMartino sued Ostrander-Burr on allegations she had negligently entrusted the Nissan to Burr, knowing he was an alcoholic. DiMartino also sued Ostrander-Burr’s insurer, State Farm Mutual Insurance Company, for denying DiMartino’s claim for injuries suffered in the accident. Last, DiMartino sued his own insurer, Interinsurance Exchange of the Automobile Club. At the time of the accident, DiMartino was covered under a $25,000 medical payments insurance policy purchased from the Auto Club. After the accident, the Auto Club paid roughly $7,250 to DiMartino in medical insurance benefits, then declined any further payments.
In March 2005, DiMartino filed his operative second amended complaint (SAC). As to the Auto Club, DiMartino’s SAC alleged three causes of action: breach of contract; tortious breach of the implied covenant of good faith and fair dealing; and declaratory relief.
DiMartino’s claims against Ostrander-Burr were resolved by summary judgment. In a prior appeal, we affirmed. (DiMartino v. Ostrander, supra, B197830.) We do not know the outcome of DiMartino’s claims against Burr. The only claims which are relevant for present purposes are DiMartino’s claims against his own insurer, the Auto Club.
In June 2009, the Auto Club filed a motion for summary adjudication of issues (SAI) of DiMartino’s cause of action for tortious breach of the covenant of good faith and fair dealing. In August 2009, the Auto Club filed a motion to reclassify DiMartino’s case as a “limited civil action.” The trial court eventually heard both motions at a hearing on November 17, 2009. The court granted the Auto Club’s motion for SAI for the following reasons: “[T]here exist no triable issues of material fact as to whether the... position upon which the [Auto Club] denied the claim was reached reasonably and in good faith as required under Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 724.... [¶] The evidence shows that a dispute as to coverage existed, but that [the Auto Club] took actions that were reasonable and in good faith. [The Auto Club] made medical payments despite the fact that State Farm was believed to be the primary carrier. [The Auto Club] retained outside counsel only after it became apparent that the treatment charges appeared to be excessive and exceeded reasonable costs for plaintiff’s diagnosis. [The Auto Club] arranged for an independent medical examination and multiple records reviews from a highly qualified orthopedic surgeon. It was only then... that [the Auto Club] denied further payments.” Having granted SAI of DiMartino’s cause of action for tortious breach of the parties’ insurance contract, the trial court granted the Auto Club’s motion to reclassify DiMartino’s remaining cause of action for breach of contract as a limited civil action.
On December 3, 2009, the clerk of the trial court served notice of transmittal of the reclassified action. On December 7, 2009, the trial court assigned to DiMartino’s limited civil action entered a judgment pursuant to stipulation. The judgment provides that DiMartino agreed to dismiss his claim for breach of contract, and that the Auto Club shall recover from DiMartino the sum of $20,000 in costs and fees pursuant to Code of Civil Procedure section 998.
On February 4, 2010, DiMartino filed a notice of appeal from the judgment “dated December 7, 2009.”
We have a duty to raise issues concerning our jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) “A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)
On March 4, 2010, the clerk of our court served DiMartino with an order to show cause (OSC), directing him to show cause, in writing, “why the appeal... should not be dismissed or transferred to the Los Angeles Superior Court for disposition.” The matter was thereafter assigned to our Division for determination.
On March 10, 2010, DiMartino filed opposition to the OSC; on March 22, 2010, the Auto Club filed a response to DiMartino’s presentation. At oral argument both parties agreed this case should be dismissed without prejudice. We agree.
Accordingly, the appeal is ordered dismissed without prejudice.
We concur: RUBIN, J., FLIER, J.