Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 07CC11727. Peter J. Polos, Judge. Appeal dismissed.
Benton, Orr, Duval & Buckingham and Bruce Alan Fink for Plaintiff and Appellant.
Esner, Chang & Ellis, Gregory R. Ellis and Stuart B. Eisner; Law Offices of John R. Lobherr and John R. Lobherr, for Defendants and Respondents.
BEDSWORTH, ACTING P. J.
S. J. Amoroso Construction Co., Inc. (Amoroso) appeals from an order that denied its motion for reconsideration, after the demurrer of Georgia Rae Hoffman and Dean Elliott Hoffman (Hoffmans) was sustained without leave to amend. Amoroso argues this court has jurisdiction despite the absence of an appealable order, the demurrer should have been overruled, and if not, leave to amend should have been granted.
We issued an order that advised the parties the court was considering dismissing the appeal for lack of jurisdiction, and we invited them to file letter briefs addressing the issue. Amoroso did so. We notified the parties the issue of jurisdiction would be decided in connection with the appeal. We now conclude there is no jurisdiction and dismiss the appeal.
FACTS
The complaint alleged Amoroso is a general contractor and the Hoffmans are the sole officers of Champion Concrete, Inc. (Champion), a subcontractor on one of Amoroso’s jobs. In a prior action, Amoroso obtained a $538,894.78 judgment against Champion for breach of the subcontract but was unable to collect. The instant action followed.
Two causes of action were set out: (1) “removal of corporate veil,” which alleged Champion was the alter ego of the Hoffmans and the Hoffmans are liable on the prior judgment; (2) breach of subcontract by the Hoffmans, as agents for Champion. The Hoffmans demurred to the complaint.
The trial court found res judicata barred the present action, and Amoroso should have moved to amend the prior judgment to add the Hoffmans as judgment debtors. Notice of entry of the order sustaining the demurrer was served on April 23, 2008. Amoroso’s motion for reconsideration was denied, and notice of entry of the order denying reconsideration was served on June 10, 2008. Amoroso’s notice of appeal, filed on July 21, 2008, stated it appealed from the order denying reconsideration.
DISCUSSION
As Amoroso concedes in its letter brief, appealability is controlled by statute in California. “Appealable orders are set forth under Code of Civil Procedure section 904.1. None of them appear to apply to the present instance.” Amoroso argues the order in this case should be deemed a judgment because requiring it to obtain a judgment would force it to invite error, or would amount to an impermissible attempt to confer appellate jurisdiction by stipulation. Neither point has any merit. Since there is no appealable order, the appeal must be dismissed.
Remarkably, Amoroso bases its invited error argument in large part on Yancey v. Fink (1991) 226 Cal.App.3d 1334. The case is indeed on point, but Amoroso failed to heed it.
When Yancey attempted to appeal from an order sustaining a demurrer, the court ordered him to file “‘a proper order or judgment of dismissal.’” (Yancey v. Fink, supra, 226 Cal.App.3d at p. 1342.) Ignoring the order, Yancey instead filed a voluntary request for dismissal, which was entered. The court explained the difference between a judicial order dismissing a case, which is appealable, and a party’s voluntary dismissal that terminates the action and leaves no appellate jurisdiction to review alleged errors. Since Yancey failed to obtain an appealable order, and divested the appellate court of jurisdiction by voluntarily dismissing the action, the appeal was dismissed.
Far from giving Amoroso an excuse not to obtain a judgment, Yancey instructs how to do so without losing appellate jurisdiction. It points out what to do and what to avoid: Obtain a court order dismissing the action, but in no event file a voluntary dismissal. What could be clearer?
The argument that obtaining a judgment would run afoul of the rule that parties cannot stipulate to appellate jurisdiction cites Don Jose’s Restaurant, Inc. v. Truck Insurance Exchange (1997) 53 Cal.App.4th 115 and several later cases that follow it. But those cases are distinguishable. In Don Jose, we held parties cannot confer appellate jurisdiction by stipulation in order to obtain review of an order granting summary adjudication on some causes of action. The artifice attempted was a stipulation dismissing the remaining claims without prejudice, with an agreement that if the appellate court reversed summary adjudication, the action would proceed on all causes of action. (Don Jose’s Restaurant, Inc. v. Truck Insurance Exchange, supra, 53 Cal.App.4th at p. 117.) We dismissed the appeal, holding the one final judgment rule prohibits an appeal from determination of some causes of action while others remained undecided. (Id at pp. 118-119.)
Don Jose simply has no bearing here, where there is neither a consent judgment nor an attempt to appeal a portion of a judgment. If it establishes anything applicable to this case, it is that you need a final judgment to appeal, rather than a partial one and a stipulation. Amoroso asserts a request for entry of judgment on its part would “consent” to the judgment – without further explanation – and Don Jose prohibits consent judgments to confer jurisdiction. But that is not what a dismissal does here. A dismissal in this case merely provides the final judgment required to appeal. The relevant precedent is Yancey v. Fink, supra, 226 Cal.App.3d 1334.
To the extent the requirement of an appealable judgment is an obstacle, it is one that has been navigated easily by innumerable parties in the past. There is nothing unique about this case, in which a demurrer was sustained but no order or judgment of dismissal entered. Nor is there any reasonable excuse for not providing a judgment from which to appeal. Since no appealable judgment appears in the record, the appeal is dismissed for lack of jurisdiction.
WE CONCUR: O’LEARY, J., ARONSON, J.