Opinion
A096637.
7-15-2003
GEORGE HOFFBERG, Plaintiff and Appellant, v. MARK MIDDLETON, Defendant and Respondent.
George Hoffberg appeals from an order taking his motion to recover attorney fees off calendar. Respondent Mark Middleton correctly contends the appeal is premature because the order is not final. Accordingly, we must dismiss the appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 876 P.2d 1074.)
This case arises from a dispute between Hoffberg, a landlord, and Middleton, his tenant, over access to Middletons apartment. The order in question declares: "the plaintiffs Motion for Attorneys Fees is taken off calendar, subject to plaintiff re-noticing the motion in the event of any future failure on the part of the defendant to provide access to the entire rental unit on notice given in accordance with the judgment previously entered in this action. The Court acknowledges that this order is done without plaintiffs stipulation and over plaintiffs objection. The Court considers that making the award of attorneys fees contingent upon defendants future compliance with the judgment is an appropriate way of ruling on the attorneys fee issue in that it provides a mechanism for determining whether plaintiff has truly prevailed with respect to the judgment entered. If there is a failure in the future to allow access under the terms of the judgment, that would indicate to the Court that plaintiff is to be the prevailing party on this action."
This is clearly not a final order. The court expressly refrained from determining that Hoffberg was a prevailing party entitled to recover fees under Civil Code section 1717. Hoffberg contends the order is effectively final, because his right to renew the motion is conditional on Middletons compliance with the judgment. However, this conditional aspect of the order merely underlines its lack of finality.
Hoffberg relies on American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal. App. 3d 875, 199 Cal. Rptr. 735, in which the court deemed an order taking a motion for leave to file an amended complaint off calendar to be a denial of the motion. (Id. at p. 877, fn. 1.) However, the order in that case was "in effect a final determination of the plaintiffs rights." (Ibid.) The order before us simply cannot be deemed a final determination.
Hoffbergs claim that the court erred by failing to exercise its discretion to determine the prevailing party could have been addressed in a petition for a writ of mandate (see 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 110, p. 899), but it is not cognizable on appeal.
DISPOSITION
We concur: Corrigan, Acting P. J., and Pollak, J. --------------- Notes: Our disposition moots Hoffbergs request for judicial notice, and the request is therefore denied.