Opinion
G044279 Super. Ct. No. 30-2008-00111454
09-23-2011
EXIR CO., INC., Plaintiff and Appellant, v. CVC REAL ESTATE GROUP, INC., Defendant and Respondent.
John K. Saur for Plaintiff and Appellant. Livingston Law Firm, Renee Welze Livingston and Crystal L. Van Der Putten for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Dismissed.
John K. Saur for Plaintiff and Appellant.
Livingston Law Firm, Renee Welze Livingston and Crystal L. Van Der Putten for Defendant and Respondent.
Plaintiff Exir Co., Inc. (Exir) appeals from an order granting summary judgment in favor of CVC Real Estate Group, Inc. (CVC). The appeal is dismissed as taken from a nonappealable order.
I
FACTS
Exir filed a complaint against CVC and others seeking damages arising out of a fire that burned Exir's newly purchased property in Silverado, California. CVC filed a motion for summary judgment. An order granting CVC's motion for summary judgment was filed on July 29, 2010. Exir thereafter filed a notice of appeal from a "[j]udgment after an order granting a summary judgment motion" entered on July 29, 2010.
Having found no judgment in the record on appeal, by order of September 16, 2011, we directed Exir to file a supplemental letter brief stating whether or not a judgment, as opposed to an order granting a motion for summary judgment, had ever been entered in this case. On September 19, 2011, Exir informed this court that no judgment had been entered. That same date, we sent out an order requesting the parties to be prepared to argue, at oral argument scheduled for September 22, 2011, whether or not the appeal must be dismissed as taken from a nonappealable order.
II
DISCUSSION
As this court has stated previously, "a summary judgment is appealable, but an order granting summary judgment is not. [Citations.]" (Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.) This notwithstanding, Exir requests that we amend the order to turn it into an appealable judgment. In its amended supplemental letter brief, Exir cites Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [order sustaining a demurrer deemed to incorporate judgment of dismissal] (disapproved on other grounds in Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074), In re Estate of Dito (2011) 198 Cal.App.4th 791 [same], and Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1 [appellate court directed amendment of order granting summary judgment].
We will address Swain v. California Casualty Ins. Co., supra, 99 Cal.App.4th 1, which is the only one of the three cases having to do with summary judgment. There, the court filed an order granting summary judgment and the moving party "gave 'notice of entry of judgment.'" (Id. at p. 5.) The court's order stated: '"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that said Motion for Summary Judgment is granted and that judgment shall be entered forthwith in favor of [defendant] and against plaintiffs . . . .'" (Id. at pp. 5-6, boldface omitted.) The appellate court observed that certain of the "words suggest[ed] an intention that the order operate as a judgment." (Id. at p. 6.) It chose to direct amendment of the order "to declare that (1) judgment is entered nunc pro tunc on the complaint in favor of defendant . . . , such that plaintiffs shall take nothing and their action is dismissed; and (2) judgment is entered on the cross-complaint in favor of defendant . . . ." (Ibid.)
In the matter before us, the order is entitled: "ORDER GRANTING CVC REAL ESTATE GROUP, INC.'S MOTION FOR SUMMARY JUDGMENT." The operative portion of the order states only: "IT IS HEREBY ORDERED that defendant CVC Real Estate Group, Inc.'s . . . Motion for Summary Judgment is GRANTED." (Boldface omitted.) Unlike the situation in Swain v. California Casualty Ins. Co., supra, 99 Cal.App.4th 1, there is no hint that the written ruling is a judgment. On its face, it is an order and nothing else. Consequently, CVC sent out a "NOTICE OF ENTRY OF ORDER GRANTING CVC REAL ESTATE GROUP, INC.'S MOTION FOR SUMMARY JUDGMENT." The notice stated that "the Court signed and filed the attached Order Granting CVC Real Estate Group, Inc.'s Motion for Summary Judgment." The notice, consistent with the order itself, created no impression that anything other than an order had been filed. There was no source of confusion.
"Despite the plain rule that an order granting summary judgment is not appealable, . . . we recognize that there are instances in which courts have held otherwise. For example, some courts have chosen to treat an appeal from an order granting summary judgment as an appeal from a subsequently entered judgment, or even to deem the order itself to be a judgment, in order to save the faulty appeal. [Citations.] In other instances, courts have chosen to treat a notice of appeal from an order granting summary judgment as a writ petition instead, in order to clear the jurisdictional hurdle and hear a case pending before it. [Citation.] On the other hand, some courts have announced to the bar that they will no longer save appeals from nonappealable orders, such as orders granting summary judgment. [Citations.]" (Saben, Earlix & Associates v. Fillet, supra, 134 Cal.App.4th at p. 1030.)
Code of Civil Procedure section 437c, subdivision (m)(1) is clear. A summary judgment is appealable. Orders entered under section 437c may be reviewed by writ petition. (Code Civ. Proc., § 437c, subd. (m)(1).) Exir did not file a writ petition challenging the order. It did not see to it that a judgment was entered, from which an appeal could be taken. We decline to engage in the fiction of stating that a judgment was entered when it was not.
III
DISPOSITION
The appeal is dismissed as taken from a nonappealable order. CVC Real Estate Group, Inc. shall recover its costs on appeal.
MOORE, J.
WE CONCUR:
O'LEARY, ACTING P. J.
FYBEL, J.