Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV477962.
Haerle, J.
I. INTRODUCTION
Deutsche Bank National Trust Company (Bank) has filed a motion to dismiss two appeals filed by Dessanola Juanita Swain (Swain). We grant the Bank’s motion because, in both instances, Swain has appealed from non-appealable orders.
II. BACKGROUND
On October 29, 2008, the Bank filed a complaint against Swain and Swain’s adult son Jimmy Swain (Jimmy) for foreclosure of deed of trust, fraud, rescission and injunctive relief. On or around July 23, 2009, Swain filed a cross-complaint against the Bank, Jimmy and others alleging causes of action for rescission, damages, reformation and declaratory relief.
A court trial in the case commenced on November 10, 2009, before the Honorable Steven Dylina. That same day, the court filed an order bifurcating trial, pursuant to which it severed from the trial all but one of the claims in Swain’s cross-complaint. Jimmy did not appear at trial and his default was taken by the Bank. Furthermore, pursuant to the bifurcation order, the only claim by Swain that was adjudicated was her cause of action against the Bank for rescission and statutory damages under the Truth in Lending Act (TILA).
At the conclusion of the trial the court issued a statement of decision and then filed a “judgment” on March 4, 2010 (the March 2010 judgment). The Bank was awarded damages against Jimmy for fraud and some equitable relief. Swain’s TILA cross-claim was denied but Swain was declared the prevailing party. On April 29, 2010, Swain filed a notice of appeal from the March 2010 judgment. (Case No. A128382.)
Thereafter, Swain filed a trial court motion for attorney fees, which was denied in an order filed September 17, 2010 (the September 2010 order). On September 29, 2010, Swain filed a notice of appeal from a September 2010 order. (Case No. A129861.)
In December 2010, the parties notified this court that Swain passed away and submitted a joint request for a stay of the appeal in Case A128382 and Case A129861. On December 22, 2010, this court granted the parties joint request to stay both appeals pending the appointment of a personal representative of Swain’s estate.
In March 2011, the parties filed a joint request and stipulation stating that Bernita Sherard-Henderson (Sherard-Henderson) has been appointed executor of Swain’s estate and that Sherard-Henderson may proceed with these appeals. On March 15, 2011, this court filed an order lifting the stay of the appeals in Case Nos. A128382 and A129861.
On April 22, 2011, the Bank filed the instant motion, contending that both of Swain’s appeals must be dismissed because the March 2010 judgment and the September 2010 order are non-appealable rulings entered prior to a final judgment in the ongoing action between these parties.
The Bank has also filed a declaration by John McNutt, the Bank’s attorney of record. McNutt states, among other things, that when Swain filed both of her appeals in this case, “several claims” between Swain and the Bank were awaiting trial. McNutt also states that all of the claims in the Bank’s complaint and Swain’s cross-complaint and amended cross-complaints “arise out of the same transaction or occurrence that was at issue in the November 2009 trial.”
III. DISCUSSION
“The right to appeal is wholly statutory. [Citation.] Code of Civil Procedure section 904.1 lists appealable judgments and orders. Chief among them is a ‘judgment’ that is not interlocutory, e.g., a final judgment. A judgment is the final determination of the rights of the parties (Code Civ. Proc., § 577) ‘ “ ‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.’ ” ’ [Citations.] ‘ “It is not the form of the decree but the substance and effect of the adjudication which is determinative.” ’ ” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.)
The theory behind this one final judgment rule “ ‘ “is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.” ’ [Citations.]” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756.)
In the present case, the March 2010 judgment is not appealable as a final judgment because it is not the final determination of the rights of the parties; it does not terminate litigation between the Bank and Swain on the merits of the case. Indeed, the Bank has submitted evidence that Sherard-Henderson has recently taken steps toward filing a third amended cross-complaint against the Bank.
The fact that the trial court filed a bifurcation order which formally “severed” Swain’s pending cross-claims from the claims that were tried in November 2009 does not affect our analysis or conclusion. Our Supreme Court has expressly held that “an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as ‘separate and independent’ from those remaining.” (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 [disapproving Schonfeld v. City of Vallejo (1976) 50 Cal.App.3d 401 and its progeny].)
Sherard-Henderson has filed a response to the Bank’s motion to dismiss in which she does not dispute that the appeal from the March 2010 judgment must be dismissed. She does contend, however, that the September 2010 order denying Swains’ motion for attorney fees is appealable pursuant to the collateral order doctrine exception to the one final judgment rule. We disagree.
The collateral order doctrine states: “Where the trial court’s ruling on a collateral issue ‘is substantially the same as a final judgment in an independent proceeding’ [citation], in that it leaves the court no further action to take on ‘a matter which... is severable from the general subject of the litigation’ [citation], an appeal will lie from that collateral order even though other matters in the case remain to be determined. [Citation.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.) “In determining whether an order is collateral, ‘the test is whether an order is “important and essential to the correct determination of the main issue.” If the order is “a necessary step to that end, ” it is not collateral. [Citations.]’ [Citation.]” (Ibid.)
Sherard-Henderson contends that this exception applies to the September 2010 order denying Swain’s motion for attorney fees because “the trial court made a final determination when it issued a decision stating that Mrs. Swain was the prevailing party but that with respect to Deutsche Bank’s complaint she was not entitled to attorney fees.” This argument is factually and legally unsound.
As a factual matter, there is no final judgment in this case and thus, by definition, there can be no final determination regarding the prevailing party or any party’s entitlement to attorney fees. Furthermore, Sherard-Henderson mistakenly relies on legal authority recognizing that a post-judgment order which awards or denies costs or attorney’s fees is separately appealable. (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 841 (Henneberque); Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) In Henneberque, supra, 172 Cal.App.3d at page 842, for example, the court stated that “[a] statutory motion for attorney fees is a collateral matter, ancillary to the main cause; it seeks what is due because of the judgment.” This theory does not apply to the September 2010 order, however, because there was no prior final judgment establishing what was due to these parties, but only a partial judgment disposing of some but not all of the claims between them.
We are perplexed by the trial court’s decision to entertain Swain’s motion for attorney fees prior to entry of a final judgment, but that issue is not before us on appeal.
“The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed. [Citation.]” (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) This rule squarely applies to both of Swain’s appeals.
IV. DISPOSITION
The appeals in Case Nos. A128382 and A129861 are dismissed.
We concur: Kline, P.J., Richman, J.