Opinion
B226870
01-10-2012
PHILIP MARKOWITZ, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents
Law Offices of Steven Sandler and Steven Sandler for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Amy Jo Field and Lisa S. Berger, Deputy City Attorneys, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC379354)
APPEAL from an order of the Superior Court of Los Angeles County, Amy D. Hogue, Judge. Dismissed.
Law Offices of Steven Sandler and Steven Sandler for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Amy Jo Field and Lisa S. Berger, Deputy City Attorneys, for Defendants and Respondents.
Appellant purports to appeal from an unsigned minute order denying his motion to set aside a stipulation and directing respondents to file an order of dismissal. This order is not an appealable order or final judgment.
FACTUAL AND PROCEDURAL SUMMARY
The Pasadena Police Department (PPD) investigated allegations that appellant had made terrorist threats in violation of Penal Code section 422. Because appellant resided in Los Angeles, the Los Angeles Police Department (LAPD) effectuated his arrest and turned him over to the custody of the PPD.
Appellant brought suit against the cities of Pasadena and Los Angeles, as well as individual officers, claiming false arrest, emotional damages, and civil rights violations. The trial court granted Pasadena's motion for summary judgment, finding there was probable cause for appellant's arrest, and appellant filed an appeal. (See Markowitz v. City of Pasadena (May 27, 2010, B213609) (Markowitz) [nonpub. opn.].). The claims against Los Angeles and its individually named officers proceeded and were set for trial.
In January 2009, attorneys for appellant and respondents stipulated to stay the trial pending our decision in Markowitz and dismiss with prejudice all remaining claims in the event we affirmed summary judgment. The attorneys concluded that the central issue was whether probable cause existed for the arrest, and our decision on this issue in Markowitz would be dispositive of the claims against Los Angeles. The stipulation was filed in the trial court.
In May 2009, appellant's counsel filed a motion pursuant to Code of Civil Procedure section 473, subdivision (b), to set aside the portion of the stipulation agreement to dismiss the case in the event we affirmed summary judgment in Markowitz. He claimed he had not obtained appellant's consent or authority to enter into the stipulation and did so due to mistake, inadvertence, and neglect. In the alternative, he argued the court should exercise its equitable power to set aside the stipulation because it was entered into due to extrinsic mistake. Appellant's supporting declaration stated he did not authorize or ratify the dismissal of the claims.
All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.
The court denied the motion, concluding section 473, subdivision (b) did not apply because no dismissal had been entered since the Markowitz appeal was still pending. It declined to provide discretionary relief because "conduct by an attorney falling below the professional standard of care is not considered excusable neglect."
At a status conference in June 2010, the court learned that we affirmed the judgment in Markowitz. Initially, the court expressed that it would not "make any ruling." Respondent's attorney reminded the court of the stipulation and its previous order dismissing appellant's motion to set aside the stipulation. The court said "there's an order on file that says if the appellate court affirms, which it has, then the city is dismissed. So pursuant to that stipulation and order, I today dismiss the City of L.A . . . with prejudice" Appellant's counsel requested that the court stay its dismissal since he intended to file a renewed motion to set aside the stipulation. The court tentatively declined the stay because appellant's counsel had already lost on the first motion. When appellant's attorney reminded the court that it had not "denied the [first] motion, but said it was premature," the court said "[w]ell, you can bring all that up when you file whatever you're going to file today, and I'll look at it, but I'm not inclined to do anything different."
Appellant's counsel renewed the motion. Neither appellant nor his counsel appeared at the hearing on the motion, which occurred in July 2010. The court concluded that section 473, subdivision (b) does not apply where "the lawyer affirmatively entered into a stipulation." The stipulation was a strategic decision by both parties and the court ruled appellant was bound by its terms. The minute order provides that "upon the filing of a remittitur [the court] intends to enter an order dismissing the complaint, with prejudice, as against the City of Los Angeles and the individually named defendants, based upon the stipulation and order filed in January of 2009." The court ordered respondents to prepare and submit a proposed order consistent with the stipulation upon the filing of this court's remittitur. Although our remittitur issued, no such order appears in the record.
In August 2010, appellant filed the instant appeal seeking review of "an order denying a motion for an order vacating the dismissal of [his] case against [respondents]." Appellant attached a copy of the minute order from the hearing on appellant's renewed motion to set aside the stipulation.
DISCUSSION
"An 'order for judgment' is merely the trial judge's oral statement indicating which party shall prevail, or the opinion of the trial judge indicating how judgment should be rendered." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 161, p. 237.) "It is not an appealable judgment, but merely the basis for a judgment to be made." (Ibid.; see also Jordan v. Malone (1992) 5 Cal.App.4th 18, 21 [trial court's order for judgment is a tentative decision and is not appealable].) Nor is an unsigned minute order dismissing the case a judgment from which an appeal may be taken. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578; Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730, 1731-1732; see also § 581d.)
Code of Civil Procedure section 581d provides: "A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. [¶] All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case."
Appellant contends his appeal is "from an order denying a motion for an order vacating the dismissal of [his] case against [respondents] . . . entered July 17, 2010 [ sic]." The attached order is an unsigned minute order dated July 12, 2010, in which the court denied appellant's motion to set aside the stipulation that he would dismiss the action if we affirmed the summary judgment in Markowitz, which we did. In the attached minute order, the court requested that respondents submit a proposed order dismissing the case upon remittitur in Markowitz. Respondents contend they never filed this order, and the appeal should be dismissed since the minute order was not a final judgment.
No order on this date appears in the record, and, in fact, it was a Saturday.
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We agree there is neither an appealable order nor a judgment. The unsigned minute order shows that the court did not dismiss the case but merely denied appellant's second request to set aside the stipulation. The court indicated its opinion that the case should be dismissed on the basis of the stipulation and ordered respondent to prepare an appropriate order. Until the order was filed, the court could have modified its decision and appellant could have taken further steps to set aside the stipulation. Thus, the minute order reflects the court's tentative decision about how judgment should be rendered, but not its final judgment. (See Cal. Rules of Court, rule 3.1590(b) ["tentative decision does not constitute a judgment and is not binding on the court"].)
"Even though [respondent] was the party directed to prepare, serve and submit the judgment, the apparent failure of [respondent] to do so does not relieve [appellant] from the requirement of appealing from an appealable order." (Jordan v. Malone, supra, 5 Cal.App.4th at p. 21.) Until there is a valid judgment of dismissal, there is no basis for appellate jurisdiction. (Powell v. County of Orange, supra, 197 Cal.App.4th at p. 1578; see also § 904.1.)
DISPOSITION
The appeal is dismissed. Respondents to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J. SUZUKAWA, J.