Hasso v. Alameda County

Full title: DANIEL HASSO et al., Plaintiffs and Appellants, v. ALAMEDA COUNTY et al.…

Court: Court of Appeal of California

Date published: Dec 13, 2006

A111587 (Cal. Ct. App. Dec. 13, 2006)

Opinion

A111587

12-13-2006

DANIEL HASSO et al., Plaintiffs and Appellants, v. ALAMEDA COUNTY et al., Defendants and Respondents.

Lambden

Daniel Hasso held a security interest on four parcels of property in Berkeley (the property). He obtained the property out of the bankruptcy estate and paid the delinquent taxes of $336,111.11. Daniel claimed that the taxes could only be collected as an unsecured claim in the bankruptcy proceeding and therefore the collection of taxes violated the automatic stay in bankruptcy. He and his brother, Alan Hasso, sued Alameda County, Alameda County Board of Supervisors, Alameda County Treasurer and Tax Collector, and Alameda County Treasurer-Tax Collector (collectively, Alameda) for the refund of property taxes. The lower court sustained Alamedas demurrer against the brothers pleading without leave to amend, finding that Daniel and Alan Hasso did not have standing to object to any violation of the automatic stay. The brothers appealed from the order sustaining the demurrer without leave to amend. No judgment has been entered.

It is elementary that "[a]n order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed." (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on another issue; Code Civ. Proc., § 904.1.) We recognize that appellate courts do frequently "save" such erroneous appeals by treating them as being from a subsequently entered judgment of dismissal. (See, e.g., Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) However, in the present case no judgment of dismissal has yet been entered. "[T]he ultimate responsibility rests with the appealing party; plaintiff could have requested the trial court to compel defendant to prepare the judgment or requested permission to prepare and file the judgment himself to perfect his appeal rights." (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21.)

Because no appealable order or judgment has been entered in this case, the appeal is premature and, on this courts own motion, the appeal is dismissed.

DISPOSITION

The appeal is dismissed.

We concur:

HAERLE, Acting P.J.

RICHMAN, J.