Opinion
A153295
02-22-2018
HULEN T. HARRELL, Plaintiff and Appellant, v. ALAMEDA COUNTY SHERIFF'S DEPARTMENT et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG13665188)
Defendants, the Alameda County Sheriff's Department and officials of the department, have moved to dismiss the appeal of plaintiff Hulen T. Harrell from three orders entered on December 1, 2017, denying related motions. Previously, on April 29, 2016, the trial court issued an order sustaining defendants' demurrer and motion to strike certain causes of action of plaintiff's second amended complaint (SAC). Following the court's order, the first, fifth, sixth and ninth causes of action remained pending against defendants.
Defendants' request for judicial notice of various documents within the superior and appellate court records is granted. (Evid. Code, § 451.)
On September 13, 2017, plaintiff, appearing in propria persona, filed three motions: (1) A motion to "reinstate or 'add back' to SAC unjustified 'sua sponte' stricken claims 2, 4 and 8"; (2) A motion to " 'add back' to SAC inadvertently omitted material and essential factual pleading"; and 3. A motion "for leave to delete, amend, and correct factual pleading of SAC's paragraph X." The trial court denied each of those motions by written orders issued on December 1, 2017. By a notice of appeal filed December 27, plaintiff purports to appeal the denial of these three motions. Defendants have moved to dismiss the appeal on the ground that the orders are not appealable. We agree that the orders are not appealable and shall dismiss the appeal.
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.] . . . [¶] A trial court's order is appealable when it is made so by statute." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)
Plaintiff's notice of appeal indicates that the order is appealable as a final judgment under Code of Civil Procedure section 904.1, subdivisions (a)(1). "Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a). A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily 'interlocutory' [citation], and not yet final, as to any parties between whom another cause of action remains pending." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741.) Because four causes of action remain outstanding and unresolved between the parties, no final judgment has been entered.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
Section 904.1, subdivision (a) reads in relevant part, "An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222." --------
Construing the orders as orders denying leave to amend under section 473, subdivision (a)(1), or as denying reconsideration under section 1008, does not render the orders appealable. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489 [An order denying leave to amend a complaint is not appealable, unless it has the effect of eliminating all issues between the plaintiff and a defendant so that there is nothing left to be tried or determined.]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458 ["majority of recent cases . . . have concluded orders denying motions for reconsideration are not appealable"].)
Accordingly, the appeal must be dismissed.
Disposition
The appeal is dismissed.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.