Opinion
A100702.
7-25-2003
KATHY BRICKER, Plaintiff and Appellant, v. PETALUMA CITY SCHOOLS et al., Defendants and Respondents.
In this action for administrative mandamus, Kathy Bricker purports to appeal from the oral denial of her request for ex parte relief. The oral denial does not constitute an appealable order. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Bricker challenges certain classroom activities in the Petaluma schools, activities which she contends constituted an impermissible establishment of religion in violation of the First Amendment. These activities involved either education about the Day of the Dead (according to Petaluma City Schools) or religious celebration of the Day of the Dead (according to Bricker). The activities were scheduled for October 29-31, 2002.
On October 29, 2002, Bricker filed a petition for administrative mandamus, seeking to prevent the classroom activities from going forward. On October 30, she appeared ex parte and requested immediate relief, but the trial court orally denied her request. On October 31, Bricker filed a notice of appeal.
DISCUSSION
An appeal can be taken only from a judgment or appealable order. (Code Civ. Proc., § 904.1; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) The record discloses no judgment. Nor does it reveal an order of any kind. Both sides agree that the trial court never entered a written order, but instead orally denied Brickers request for ex parte relief. However, "[a] trial courts oral ruling on a motion does not become effective until it is filed in writing with the clerk or entered in the minutes. [Citations.]" (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.)
The oral ruling is not itself an order: "an order is a document which contains a direction by the court that a party take or refrain from action, or that certain relief is granted or not granted [citations] and which is either entered in the permanent minutes or signed by the judge and stamped filed. [Citations.]" (Shpiller v. Harry Cs Redlands (1993) 13 Cal.App.4th 1177, 1179.) By definition, an order must be in writing. (Code Civ. Proc., § 1003; In re Gilreath (1959) 167 Cal. App. 2d 655, 656-657, 335 P.2d 203.) The trial courts oral ruling does not constitute an appealable order.
Bricker has not complied with the rule requiring her to show in her opening brief how the trial courts "order" was appealable. (Cal. Rules of Court, rule 14(a)(2)(B); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 736, 872 P.2d 143.) In her reply brief, Bricker argues that the fault lies with the trial court. According to Bricker, the trial court was under an obligation to enter a judgment or written order and was in dereliction of this duty, and this omission should excuse Brickers failure to secure entry of a final judgment or appealable order.
We are not persuaded. Bricker was under an obligation to wait until entry of a judgment or appealable order before filing her notice of appeal. Bricker filed her notice of appeal the day after the trial courts oral ruling. This action " terminated the jurisdiction of the lower court. " (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666, 125 Cal. Rptr. 757, 542 P.2d 1349, quoting Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423, italics omitted.) Brickers premature appeal deprived the trial court of any opportunity to enter a judgment or order.
Alternatively, Bricker argues that the fault lies with Petaluma City Schools. Citing Sonoma County Local Rule 5.18, Bricker contends that it was Petaluma City Schoolss burden to ensure that a written order was entered. Assuming that Bricker intended to cite Local Rule 5.10, which provides that the prevailing party on a motion shall prepare a proposed order and submit it to the court within 10 court days of the hearing, this rule does not excuse the absence of an appealable order. Once again, Brickers premature appeal foreclosed the opportunity to prepare an order.
"An appealable judgment or order is essential to appellate jurisdiction." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.) It is the duty of appellate counsel to "ensure that their appeal rights are perfected according to the applicable statutes and rules of court." (Jordan v. Malone (1992) 5 Cal.App.4th 18, 22.) In the absence of an appealable order or judgment, we are without jurisdiction to act and must dismiss the appeal. (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 369, 63 Cal. Rptr. 123.)
DISPOSITION
The purported appeal is dismissed. Respondents are awarded their costs on appeal.
We concur, JONES, P.J., STEVENS, J.