Laskey v. United Online Inc.

Full title: LAURIE MARIE LASKEY, Plaintiff and Appellant, v. UNITED ONLINE, INC.…

Court: California Court of Appeals, First District, Second Division

Date published: Mar 13, 2009

No. A123769 (Cal. Ct. App. Mar. 13, 2009)

Opinion

LAURIE MARIE LASKEY, Plaintiff and Appellant, v. UNITED ONLINE, INC., Defendant and Respondent. A123769 California Court of Appeal, First District, Second Division March 13, 2009

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCV-242291

Richman, J.

Plaintiff filed a notice of appeal from an order sustaining without leave to amend the demurrer interposed by defendant to plaintiff’s amended complaint. Defendant has moved that the appeal should be dismissed because plaintiff has purported to appeal from a non-appealable order. Plaintiff filed opposition to the motion.

Defendant’s motion to dismiss is sound. “An order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed.” (I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.) “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) If an appeal is purportedly taken from an order that is not statutorily authorized, dismissal is required. (E.g., Rossi v. Caire (1922) 189 Cal. 507, 508; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645; Redevelopment Agency v. Goodman (1975) 53 Cal.App.3d 424, 429; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 86, p. 146.)

We are advised that after filing her notice of appeal, plaintiff filed a motion in the trial court asking it to vacate the “judgment,” but the trial court declined to rule on plaintiff’s motion, believing that the pending appeal divested it of jurisdiction. This is not true. “The trial court is not divested of jurisdiction by an appeal from a nonappealable order.” (Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124.) Thus, even without a dismissal of this appeal, the trial court retained jurisdiction to rule on plaintiff’s motion and enter a final judgment. (Maxwell v. Superior Court (1934) 1 Cal.2d 294, 297.) If the trial court denies that motion, and is thereafter presented with a final judgment which is signed and entered, plaintiff may file an appeal from that judgment.

The motion is granted, and the purported appeal is dismissed.

We concur: Kline, P.J., Haerle, J.