Opinion
No. C068802.
04-09-2013
SCOTT GOOD, Plaintiff and Appellant, v. PATRICK MILLER et al., Defendants and Respondents.
[Modification of opinion (214 Cal.App.4th 472; ___ Cal.Rptr.3d ___).]
THE COURT. — IT IS ORDERED that the opinion filed in this case on March 13, 2013, be modified as follows:
On page 2, line 13 [214 Cal.App.4th 474, advance report, 6th par.], delete the entire sentence, and replace it with: "On July 11, 2011, Good filed a notice of appeal from that order, mischaracterizing it as an order "dismissing" Miller from the case."
On page 3, second paragraph, line 6 [214 Cal.App.4th 475, advance report, 5th par., line 7], after words 6 and 7 "appealable order," insert the following: "and because it did not purport to dismiss the case (cf. Code Civ. Proc., § 581d [filed written dismissal order signed by a judge "shall constitute" a judgment]), or equate to the "rendition" of judgment (see Evola v. Wendt Construction Co. (1958) 158 Cal.App.2d 658, 660-661 [appeal from order sustaining demurrer without leave to amend "was certainly filed `prior to rendition of the judgment'"]),"
On page 3, third paragraph, line 6 [214 Cal.App.4th 475, advance report, 6th par., line 8], insert the following sentence and citations after the citation (American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 883 ): "In a case involving a notice of appeal mistakenly specifying a nonappealable order denying a new trial, instead of the then extant underlying judgment, our Supreme Court has held that reviewing courts generally should exercise discretion in favor of preserving the right to appeal. (See Walker v. Los Angeles County Metropolitan Transit Authority (2005) 35 Cal.4th 15, 19-22 [23 Cal.Rptr.3d 490, 104 P.3d 844] (Walker); see Cal. Rules of Court, rule 8.100(a)(2) ["The notice of appeal must be liberally construed."].)"
On page 4, line 13 [214 Cal.App.4th 476, advance report, 2d full par., line 12], add the following at the end of the sentence outside the bracket after the words "done so]": "; cf. Walker, supra, 35 Cal.4th at pp. 20-21 [counsel presented "colorable argument" explaining mistake]; Vibert v. Berger (1966)
64 Cal.2d 65, 66-68 [48 Cal.Rptr. 886, 410 P.2d 390] [counsel filed declaration explaining the mistake].)
On page 5, line 6 [214 Cal.App.4th 477, advance report, 1st par., line 3], add the following sentence and citation to the end of the paragraph: "Thus, although Miller may not have been misled to his prejudice, a factor militating in favor of granting Good relief (see Walker, supra, 35 Cal.4th at p. 22), Good's briefing was misleading to this court, which militates sharply against granting him relief."
This modification does not change the judgment.