Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County No. CV50456, Eleanor Provost, Judge.
Law Offices of Dale K. Galipo and Dale K. Galipo for Plaintiffs and Appellants.
Edmund G. Brown, Jr., Attorney General, David Chaney, Chief Assistant Attorney General, James Schiavenza, Assistant Attorney General, Paul T. Hammerness and John P. Devine, Deputy Attorneys General, for Defendants and Respondents.
OPINION
CORNELL, J.
Timothy Contreras committed suicide while in prison. His surviving relatives, Vickie Contreras, Jess Contreras, Rosale Jean Contreras, and Virgil Wallace Contreras (collectively Contreras), sued the State of California and its agents (the State) for wrongful death. The trial court dismissed the lawsuit and Contreras appealed from the order of dismissal. The appeal was dismissed because no opening brief was filed. Contreras then filed a judgment of dismissal and appealed once again. The State contends the appeal must be dismissed and we agree.
FACTUAL AND PROCEDURAL SUMMARY
On March 26, 2003, Timothy Contreras was found hanging in his cell. He had been suffering from anxiety and depression and had been treated in the days before his death.
On March 25, 2004, Contreras filed a civil complaint against the State in Tuolumne County Superior Court containing four causes of action. The four causes of action were: (1) civil rights violations (42 U.S.C. § 1983), (2) negligent failure to summon medical assistance, (3) medical malpractice while detained by the State, and (4) negligent conduct by correctional officers in their dealings with decedent.
The State filed an answer generally denying the material allegations of the complaint and setting forth 35 affirmative defenses.
In November 2005, an arbitrator held an uncontested arbitration and filed a decision in favor of the State on all causes of action.
Contreras requested a trial de novo, which was scheduled for January 4, 2006. When the trial court called the matter, no appearance was made by Contreras and the State’s request for dismissal was granted.
On April 14, 2006, Contreras moved to set aside the dismissal due to mistake, inadvertence, surprise or excusable neglect of counsel (Code Civ. Proc., § 473). The trial court granted the motion in an order filed June 1, 2006.
On October 20, 2006, the State filed a motion for judgment on the pleadings or, in the alternative, nonsuit on the ground Contreras’s claims were not viable because they had failed to bring the action against any individual state employee.
On October 25, 2006, the trial court denied the State’s motion for judgment on the pleadings as untimely but struck the first, third, and fourth causes of action because no individual was joined as a defendant as to those causes of action. Contreras’s counsel made an offer of proof as to the second cause of action but the trial court concluded the offer did not show liability by the State and struck the second cause of action. The trial court ultimately dismissed the action with prejudice.
On January 5, 2007, Contreras filed a timely notice of appeal “from the order of dismissal with prejudice entered on or about October 25, 2006” in case No. F052033 (Contreras et al. v. State of California et al.). On July 23, 2007, this court dismissed the appeal because Contreras failed to file an opening brief. This court issued a remittitur on the dismissal on September 25, 2007.
On November 7, 2007, Contreras filed a formal judgment of dismissal in the trial court and then appealed from that judgment.
DISCUSSION
The State contends this court’s dismissal of Contreras’s first appeal is final and the November 7, 2007, formal judgment does not restart or extend the period to appeal the trial court’s order of dismissal.
An order is appealable if it contemplates no further action, such as the preparation of another order or judgment. “Once a final, appealable order or judgment has been entered, the time to appeal begins to run. The [California] Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision.” (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.)
An order of dismissal is appealable if it is (1) in writing; (2) signed by the court; and (3) filed in the action. (Code Civ. Proc., § 581d; Cano v. Glover (2006) 143 Cal.App.4th 326, 328, fn. 1.) Here, the trial court’s order of October 25, 2006, satisfied all of these requirements. Contreras filed a timely notice of appeal from that order.
On July 23, 2007, this court dismissed the appeal after Contreras failed to file an opening brief and this court gave notice as required by California Rules of Court, rule 8.220(a)(1). Our order of dismissal stated: “No brief having been filed by appellant(s) after notice duly given under rule 8.220(a)(1) of the California Rules of Court, IT IS ORDERED that the appeal of said appellant(s) in the above-entitled cause is dismissed.”
“The dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal.” (Code Civ. Proc., § 913.) Since this court did not expressly dismiss the appeal in case No. F052033 “without prejudice to another appeal,” the trial court’s order of dismissal became final and binding and the appeal could not be restarted or extended by the November 7, 2007, filing of a subsequent judgment making the same decision. (Laraway, supra, 98 Cal.App.4th at pp. 582-583.)
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to the State.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.