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Migdal v. Valley of California, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 31, 2012
A131388 (Cal. Ct. App. Jan. 31, 2012)

Opinion

A131388

01-31-2012

MARK MIGDAL, Cross-complainant and Appellant, v. VALLEY OF CALIFORNIA, INC. et al., Cross-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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. CIV471822)

By the Court :

Before Marchiano, P. J., Dondero, J. and Banke, J.

On January 29, 2009, defendant and cross-complainant Mark Migdal filed a first amended cross-complaint against plaintiffs Kamran and Mitra Ehsanipour and cross-defendants Valley of California, Inc., dba Coldwell Banker Residential Brokerage (Coldwell Banker) and Enayat Boroumand. Coldwell Banker and Boroumand were not sued by the plaintiffs and appeared in the action only as cross-defendants.

On August 28, 2009, Coldwell Banker and Boroumand moved for a determination of good faith settlement and dismissal of Migdal's cross-claims against them. On September 29, 2009, the trial court heard and granted the motion. The clerk's minutes state, inter alia: "The Court dismisses the cross-complaint and bars further cross-actions against Cross-defendants Valley of California, Inc., dba Coldwell Banker Residential Brokerage and Enayat Boroumand." The court directed Coldwell Banker to prepare and submit a formal order, which it did and which the court signed on October 14, 2009, and filed on October 16, 2009. The order repeats verbatim the dismissal language of the minutes. Notice of entry of the order was given October 22, 2009.

On March 8, 2011, Migdal filed a notice of appeal from the October 16, 2009, order granting the motion of Coldwell Banker and Boroumand for a determination of good faith settlement and dismissal of Migdal's cross-claims against them. Migdal identified the pertinent "final judgment" permitting his appeal as the January 19, 2011, order of dismissal entered after the case proceeded to trial as between the Ehsanipours and Migdal.

Purusant to the court's request, the parties submitted letter briefs addressing the timeliness of Migdal's appeal from the October 16, 2009, order granting the motion of Coldwell Banker and Boroumand for a determination of good faith settlement and dismissal of Migdal's cross-claims against them. Under well-established authority, Migdal's appeal is untimely, and we therefore have no jurisdiction to hear it. (See, e.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2011) ¶ 2:103, pp. 2-59 to 2-60 [ruling disposing of all claims between some, but all parties, is a final, appealable judgment as to those parties]; see also Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 944-945 & fn. 3.) Migdal asserts that the fact he filed a timely writ petition challenging the good faith settlement determination which was summarily denied, should essentially toll his time for appeal until the order dismissing the claims by and between the Ehsanipours and Migdal. No authority supports this proposition. (See 1 Cal. Civil Appellate Practice (Cont.Ed.Bar 2011) §§ 3A.2, 3A.7, pp. 229, 232 [if party seeks only writ review of appealable order, time to appeal may run, depriving appellate court of jurisdiction to consider merits]; cf. In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 804 ["there is no authority for treating an untimely appeal as a writ petition"].)

The appeal is dismissed for lack of jurisdiction.


Summaries of

Migdal v. Valley of California, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 31, 2012
A131388 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Migdal v. Valley of California, Inc.

Case Details

Full title:MARK MIGDAL, Cross-complainant and Appellant, v. VALLEY OF CALIFORNIA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Jan 31, 2012

Citations

A131388 (Cal. Ct. App. Jan. 31, 2012)