Opinion
F049057
4-19-2007
ESTEBAN MARTINEZ, Plaintiff and Appellant, v. PUBLIC DEFENDERS OFFICE, COUNTY OF FRESNO, Defendant and Respondent.
Esteban Martinez, in pro. per., for Plaintiff and Appellant. Dennis A. Marshall, County Counsel, and William F. Mar, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Pursuant to respondents motion to dismiss, the appeal in the above entitled action is dismissed for the reasons stated below.
Appellants opening brief challenges only the dismissal of his action against respondent. The record in this appeal does not include appellants complaint, respondents demurrer nor the ruling sustaining the demurrer without leave to amend. The record contains a "Judgment of Dismissal" filed on February 18, 2005, and a "Notice of Entry of Judgment of Dismissal" which was served on March 3, 2005.
Appellants challenges to the judgment of dismissal are ambiguous, confused and fail to articulate any meritorious argument. The appeal should be dismissed as frivolous. (9 Witkin, Cal. Proc. (4th ed.) Appeal, § 640.)
Appellants notice of appeal was filed October 17, 2005. The notice of appeal was not timely filed with regard to the dismissal because the "Notice of Entry of Judgment of Dismissal" was served on March 3, 2005. (Cal. Rules of Court, rule 8.104.) The appeal from that dismissal must be dismissed. (Rule 8.104.)
Appellants notice of appeal states that he was appealing "An order after judgment under Code of Civil Procedure section 904.1(a)(3)-(13)" and "... Hearing type: Ex Parte Hearing on Waiver of Fees to cover the expenses of litigation." His responses to the motion to dismiss state, in pertinent part, that he is appealing the August 30, 2005, order of the trial court entitled "Hearing type: Ex Parte Hearing on Waiver of Fees" which denied that motion. The only motion for waiver of fees in the record is the "Motion for waiver of Additional Court Fees ..." filed on June 27, 2005. That motion states that "My financial status has not changed since I filed my original application.... The application for waiver of additional fees and costs was filed January 14, 2005, to cover expenses for attorney services...."
The "Motion for waiver ..." filed on January 14, 2005, was necessarily "preliminary to ..." the subsequent dismissal on February 18, 2005. It follows that denial of another such motion filed on June 27, 2005, was not an appealable order. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 652.) Thus, insofar as appellant appeals that denial, this appeal must be dismissed.
Appellant has not articulated any theories attempting to show that the denial order was erroneous. Thus, even if this court had jurisdiction to review it, this appeal should be dismissed as frivolous. (9 Witkin, Cal. Proc. (4th ed.) Appeal, § 640.) --------------- Notes: Before Ardaiz, P.J., Gomes, J,. and Hill, J.