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Sanders v. Deitch

Court of Appeals of California, Second District, Division Two.
Nov 6, 2003
No. B164276 (Cal. Ct. App. Nov. 6, 2003)

Opinion

B164276.

11-6-2003

PHILLIP C. SANDERS, Plaintiff and Appellant, v. PHILIP DEITCH, Defendant and Respondent.

Phillip C. Sanders, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.


This case arises out of the quest of appellant Phillip C. Sanders (Sanders) to get out of state prison. After he was unable to obtain postconviction relief, he sued his attorney, respondent Philip Deitch (Deitch), for malpractice. The trial court stayed the malpractice action until such time as Sanders could allege that he has been exonerated. Sanders challenges the stay on appeal. Because the stay is not an appealable order, this appeal must be dismissed.

According to a writ of habeas corpus Sanders previously filed with the superior court, he was convicted of murder, conspiracy to commit murder, and grand theft.

Deitch did not file a respondents brief. As a result, we "decide [this] appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 17(a)(2).)

FACTS

Deitch demurred to Sanderss complaint. After the trial court sustained the demurrer with leave to amend, Sanders moved for reconsideration. The trial court issued a minute order stating: "The parties shall be prepared to discuss Wiley v. County of San Diego (1998) 19 Cal.4th 532 (in a criminal malpractice action actual innocence is a necessary element of the Plaintiffs cause of action). The Court notes that [Sanderss] current Complaint fails to plead actual innocence; nor does the Complaint identify the proceedings in which [Sanders] was convicted." Sanderss motion was eventually denied. Subsequently, Sanders filed a first amended complaint and Dietch answered.

Months later, the trial court set a sua sponte motion for judgment on the pleadings. Following the initial hearing, the trial court continued the matter and issued a minute order stating: "[Sanders] shall file an Opposition with points and authorities in support . . . citing Coscia v. McKenna & Cuneo (2001) [] 25 Cal.4th 1194, 1201 [`[W]e hold that an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action.]." In his brief, Sanders argued that Coscia is inapplicable "in that `actual innocence is not a basis of this claim. Further, [Deitch] was not the `trial counsel nor `Appellate Counsel in the criminal case causing [Sanderss] incarceration and the reason for engaging [Deitch] to represent [Sanders] on Post conviction issues is unaffected by Coscia."

The trial court ruled as follows: "It is ordered that the motion for judgment on the pleadings, on the ground that [Sanderss] Complaint fails to state facts sufficient to constitute a cause of action, is Granted. This action is stayed until such time as [Sanders] obtains postconviction relief establishing his innocence, at which time [Sanders] may amend his Complaint to allege fulfillment of that precondition to the bringing of this action." (Capitalization omitted.)

Sanders petitioned us for a writ of mandate. We denied his petition.

This appeal followed.

DISCUSSION

Sanders takes the position that the stay is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (2). We note that no such code section exists. We assume that Sanders is referencing Code of Civil Procedure section 904.1, subdivision (a)(2), which provides that an order made after a judgment is appealable.

The insurmountable problem for Sanders is that the trial court did not enter judgment, and the stay is a nonappealable interim order. It is axiomatic that we have no jurisdiction to determine the merits of an appeal unless it has been taken from an appealable judgment or order. (See Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co. (1996) 45 Cal.App.4th 631, 638-639.)

DISPOSITION

The appeal is dismissed. The parties shall bear their own costs.

We concur: P. J. BOREN, and J. NOTT.


Summaries of

Sanders v. Deitch

Court of Appeals of California, Second District, Division Two.
Nov 6, 2003
No. B164276 (Cal. Ct. App. Nov. 6, 2003)
Case details for

Sanders v. Deitch

Case Details

Full title:PHILLIP C. SANDERS, Plaintiff and Appellant, v. PHILIP DEITCH, Defendant…

Court:Court of Appeals of California, Second District, Division Two.

Date published: Nov 6, 2003

Citations

No. B164276 (Cal. Ct. App. Nov. 6, 2003)