Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV142107
Mihara, Acting P. J.
Plaintiff Michael Samak filed a complaint against defendants Santa Clara Valley Transportation Authority (VTA) and Joseph De Gier, as well as a motion for leave to file the same complaint. The trial court dismissed the complaint without prejudice. On appeal, he contends: (1) the trial court was biased in favor of defendants; (2) he was never served with a motion to show cause and no record of this motion exists; (3) the trial court should use dismissal as a sanction only where there is no other reasonable sanction; (4) the pleadings of a pro per litigant are held to a less stringent standard than the pleadings of an attorney; and (5) “this case clearly was dismissed as a result of a zealous judge’s interest in dismissing this case at any cost.” Since this court lacks jurisdiction, the appeal must be dismissed.
I. Statement of the Case
On May 8, 2009, plaintiff filed a complaint for damages. On the same day, he also filed a motion for leave to file the lawsuit pursuant to the late claim relief provision of the Government Code. Defendant VTA opposed the motion for leave to file the complaint on the ground that it was untimely. Plaintiff then filed a response to VTA’s opposition. Shortly thereafter, the trial court denied the motion, stating that “[p]laintiff failed [to] cite any statutory basis for the motion and otherwise failed to cite any legal authority that would require him to obtain the court’s permission to file this action.”
On September 24, 2009, the trial court set the matter for a hearing on November 19, 2009, to determine whether the case should be dismissed. The parties were notified that any opposition to the dismissal must be filed at least 10 days before the hearing date. On November 6, 2009, plaintiff filed opposition to the dismissal.
On November 19, 2009, the matter was continued to December 17, 2009. The trial court also ordered plaintiff to file and serve proof of service prior to the next hearing. On December 17, 2009, the matter was continued to January 21, 2010. Plaintiff was also notified that any opposition to the dismissal must be filed at least 10 days prior to the hearing date.
On January 21, 2010, the trial court held a hearing at which plaintiff made a telephonic appearance. There is no reporter’s transcript for the hearing. The trial court ordered the case dismissed without prejudice.
On March 22, 2010, plaintiff filed a notice of appeal from the January 21, 2010 order.
II. Discussion
VTA contends that the appeal must be dismissed for lack of an appealable order. We agree.
An appellate court lacks jurisdiction to consider an appeal from a nonappealable order or judgment. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) When an appellate court lacks jurisdiction, it must dismiss the appeal. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
“ ‘[A]n order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment.’ [Citations.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699.) “A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) However, when an order allows further proceedings between the parties in the trial court, it is not a final adjudication. “A dismissal ‘without prejudice’ necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations. [Citations.]” (Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6.)
In the present case, the trial court’s order of dismissal was without prejudice. Since plaintiff was free to refile his action at any time as long as he filed it within the requisite statutory period, there was no final adjudication of the parties’ rights. Accordingly, the matter must be dismissed because plaintiff appealed from a nonappealable order.
Plaintiff asserts that VTA “is raising invalid points such as the reason for appeal and I quote ‘Appeal from Order of Dismissal Without Prejudice.’ This sentence is not written on the court’s dismissal notice....” Plaintiff has misread the record. The minute order of January 21, 2010, states that the case was dismissed “without prejudice.” The proof of service also states “DISMISSED W/O PREJUDICE.”
III. Disposition
The purported appeal is dismissed as from a nonappealable order.
WE CONCUR: McAdams, J. Duffy, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.