Opinion
G049271
03-14-2014
ROBERT MARTIN, Plaintiff, Cross-defendant and Respondent, v. JOHN KLING, Defendant, Cross-complainant and Appellant.
Robert H. Brownlee for Defendant, Cross-complainant and Appellant John Kling. Law offices of Frank W. Chen, Frank W. Chen for Plaintiff, Cross-defendant and Respondent Robert Martin.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
(Super. Ct. No. 30-2011-00528939)
OPINION
Appeal from judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Motion to dismiss appeal granted.
Robert H. Brownlee for Defendant, Cross-complainant and Appellant John Kling.
Law offices of Frank W. Chen, Frank W. Chen for Plaintiff, Cross-defendant and Respondent Robert Martin. THE COURT:
Before Rylaarsdam, Acting P. J., Bedsworth, J., and Moore, J.
This is an appeal from an order sustaining, without leave to amend, a demurrer to the appellant's third amended cross-complaint. Since dismissal of the cross-complaint did not conclude the action between the parties, the order is not appealable.
BACKGROUND
Kling and Martin are both in the fire protection industry and are involved in a business dispute, with each asserting claims against the other. Kling appeals from the trial court's dismissal on demurrer of his cross-complaint against Martin.
In December 2013, we issued an order notifying Kling that we were considering dismissing his appeal because he had not yet secured a signed judgment of dismissal of the cross-complaint from the trial court. (Code Civ. Proc., § 581d; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.) We ordered Kling to file a signed judgment of dismissal, or we would dismiss his appeal.
Kling asked for an extension of time to secure a judgment of dismissal, but Martin opposed Kling's extension request because Martin's claims against Kling were not affected by the dismissal order, and were set for trial.
On January 3, 2014, we filed an order treating Martin's opposition as a motion to dismiss the appeal based on the "one final judgment" rule, and asked for further briefing from the parties.
Kling opposed the motion to dismiss, claiming his issues on the cross-complaint are different than those in the main complaint. He subsequently submitted a signed judgment of dismissal on his cross-complaint.
In February 2014, the parties jointly filed an ex parte application with the trial court to vacate the trial date because of this appeal. The trial court vacated the trial date.
DISCUSSION
The "one final judgment" rule precludes an appeal while there are still pending proceedings between the parties in the trial court, including a complaint or cross-complaint. "Under California's 'one final judgment' rule, a judgment that fails to dispose of all the causes of action pending between the parties is generally not appealable." (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1100.)
As explained in ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1002, the one final judgment rule means "'an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties.' [Citation.] Even if the various causes of action are tried separately or can be characterized as independent of one another, there can be no appeal taken until a final judgment that disposes of all causes of action is entered. [Citation.] [¶] Where a complaint and cross-complaint involving the same parties have been filed, there is no final, appealable judgment until both have been resolved. [Citation.]"
Here, Martin's complaint against Kling remains unresolved, and would have been set for trial but for Kling's premature appeal. The trial should proceed.
DISPOSITION
In the absence of a final, appealable judgment between the parties, the appeal is dismissed. Costs on appeal are awarded to respondent.