Opinion
H036622
12-22-2011
GLOBAL SWIFT FUNDING LLC, Plaintiff and Appellant, v. BANK OF AMERICA CORPORATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS (?)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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 109CV145993)
Plaintiff Global Swift Funding LLC purports to appeal from an order granting a cross-motion for summary judgment brought by defendant Bank of America Corporation. Plaintiff seeks review of the trial court's conclusion that plaintiff suffered no damages in connection with defendant's release of funds to a third party, which was contrary to a stipulated judgment between plaintiff and the third party. We conclude, however, that plaintiff has appealed from a nonappealable order. We will therefore dismiss the appeal without prejudice.
Procedural History
In 2008 plaintiff pursued an action against Net Courier Services, Inc. (Net Courier), which resulted in a 2009 stipulated judgment against Net Courier for $477,701.88. An order in December 2008, also entered by stipulation, directed defendant's branch in Half Moon Bay and another branch in San Jose to release funds in Net Courier's accounts to the sheriff of each county. The sheriff was then to distribute half of the proceeds ($168,037.92 altogether) to Net Courier and half to plaintiff. At the Half Moon Bay branch, however, a bank employee released the entire $68,315.20 in that account to Net Courier. Plaintiff obtained an ex parte order directing the release of the remaining funds held by defendant (presumably at the San Jose branch) to the sheriff and then to plaintiff. Plaintiff thus recovered $99,722.72 - more than the amount initially ordered. It then brought suit against defendant for "approximately $99,000" based on defendant's "failure to maintain control over the attached funds."
Both parties moved for summary judgment. In an order filed December 17, 2010 the superior court ruled as follows: "Defendant Bank of America's Cross-Motion for Summary Judgment has been fully briefed by the parties and heard by the Court at oral argument. [¶] NOW, THERE BEING GOOD CAUSE SHOWN, THE COURT HER[E]BY ORDERS: [¶] 1. Summary Judgment is granted in favor of defendant Bank of America and against plaintiff Global Swift Funding LLC, because the Court finds that Global Swift suffered no damages as the result of Bank of America's actions[.]" The Notice of Entry of Order was filed December 22, 2010, and plaintiff filed its notice of appeal on February 22, 2011.
Discussion
We cannot address the issues raised in this appeal without first determining whether we have jurisdiction to review the order plaintiff challenges. We conclude that we do not.
"In California, the right to appeal is wholly statutory. [Citation.] In order to exercise that right an appellant must take an appeal from a statutorily declared appealable judgment or order (Code Civ. Proc., § 904.1) . . . [¶] An order granting a motion for summary judgment is not among the types of orders specified in Code of Civil Procedure section 904.1." (Allabach v. Santa Clara County Fair Ass'n (1996) 46 Cal.App.4th 1007, 1010 (Allabach).) Here, in both its Civil Case Information Statement and its opening brief, plaintiff represented that it was appealing from a "Judgment after an order granting a summary judgment motion." There is, however, no such judgment, but only an order granting defendant's cross-motion for summary judgment. Plainly the required statutory prerequisite for appellate review is absent here.
This case is not comparable to those in which a judgment has been entered but the appeal was taken prematurely from the earlier order granting summary judgment. In those circumstances we, like other courts, have often construed the order to be from a subsequently entered judgment. (See, e.g., Allabach, supra, 46 Cal.App.4th at p. 1010; Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 7; Aguilar v. Universal City Studios, Inc. (1985) 174 Cal.App.3d 384, 387, fn. 1.) Here, however, there is no judgment. There is thus no statutory basis on which we have jurisdiction to review the challenged proceedings. (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 924, fn. 2, disapproved on another point in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7.)
We recognize that in the past, reviewing courts have occasionally transformed nonappealable orders into appealable judgments just by declaring them so. (See, e.g., Lieding v. Commercial Diving Ctr. (1983) 143 Cal.App.3d 72, 74; Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 538; Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761.) There is no reason, however, to continue participating in this rescue of defective appeals. In Modica v. Merin (1991) 234 Cal.App.3d 1072, decided 20 years ago, the Third District refused to perpetuate the practice of construing orders as appealable judgments with this strong admonition: "It is not that we are insensitive to the plight of plaintiff's counsel but it is a plight not of our making. Nor is the problem here one that occurs only infrequently. Despite persistent efforts by the appellate courts to educate the bar, attempts to appeal from nonappealable orders of this nature continue unabated in substantial numbers. In 1973, this court created the fiction that a nonappealable order incorporated a judgment of dismissal. We did this not to 'amend' Code of Civil Procedure section 904.1 to render orders such as this appealable, an act beyond our constitutional powers (see Cal. Const., art. III, § 3), but to further the interests of justice and prevent unnecessary delay [citation]. This court indulged that fiction in a number of cases thereafter in the hope that focusing attention on the problem in this way would effect a painless solution. Alas, this practice had the unintended and lamentable consequence that counsel came increasingly to rely upon the court's indulgence rather than to take the procedural steps necessary to perfect an appeal." (Id. at p. 1074.) The Modica court dismissed the appeal from the order granting summary judgment. (Accord, Jordan v. Malone (1992) 5 Cal.App.4th 18, 22-23 [dismissing purported appeal from written decision which contemplated preparation of a final judgment].)
In Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1180 (Shpiller), decided just two years after Modica v. Merin, the Fourth District, Division Two, announced that it was "no longer this court's policy to 'save' erroneous appeals" by "ordering the appellant to obtain and supply to us, on or before a certain date, a certified copy of the appealable order or judgment." The court explained: "For many years, this court, and most, if not all appellate courts, have repeatedly admonished appellants about the failure to make the preliminary and fundamental determination that what they are appealing from is, in fact, an appealable order or judgment. (This, of course, assumes the existence of an order or judgment.) Such admonishments being of little avail, California Rules of Court, rule 13 was amended, effective July 1, 1989, to require that every opening brief contain 'either a statement that the appeal is from a judgment that finally disposes of all issues between the parties or a statement explaining why the order or nonfinal judgment is appealable.' [Fn. omitted.] [¶] It is our experience that, despite the amendment of rule 13 of the California Rules of Court, parties continue to 'appeal' from nonexistent orders and judgments and/or from documents which are not even orders or judgments." (Id. at p. 1179.) The Shpiller court likewise dismissed the appeal.
Providing further warning is Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695-1696, where the Second District, Division 5, refused to "save" a purported appeal from an order sustaining a demurrer where no judgment of dismissal had ensued. While also noting the appellant's resistance to obtaining an appealable order, the court emphasized its adherence to "the trend in this district and elsewhere to be less indulgent of parties who fail to perfect their rights of appeal." (See also Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1029 [noting appellate decisions either agreeing or declining to construe orders granting summary judgment as appeal from subsequently entered judgment, but finding it unnecessary to reach the issue]; Cohen v. Equitable Life Assurance Soc'y (1987) 196 Cal.App.3d 669, 671 [warning the bar that "henceforth we will no longer bail out attorneys who ignore the statutory limitations on appealable orders"].)
Notwithstanding these strong admonitions intended to discourage the filing of appeals from nonappealable orders, courts have continued on occasion to construe those orders as appealable judgments, citing judicial efficiency. We decline to do so here. Procuring a judgment after an interlocutory order should not be a necessarily confusing, expensive, or time-consuming undertaking. This case is particularly ill suited to the fabrication of an appealable judgment, because the trial court's order did not dispose of all the issues between the parties. The December 2010 order granting defendant's motion made no mention of plaintiff's competing motion for summary judgment; consequently, to construe this order as a judgment would fly in the face of the one-final-judgment rule. (Cf. Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293 [purpose of rule is to "prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process.") Given the procedural posture of the case before us as well as the long-settled statutes and rules defining the procedure for obtaining a judgment and initiating an appeal, we will follow Shpiller, Modica, and Hill and dismiss the appeal for lack of jurisdiction to hear it. If the issues between the parties are eventually resolved in a final judgment, plaintiff may then pursue its appeal.
Disposition
The appeal is dismissed.
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ELIA, Acting P. J.
WE CONCUR:
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice Pursuant to article VI, section 6 of the California Constitution.
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Judge of the Superior Court of Santa Clara County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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