Opinion
E033080
7-8-2003
ROBERT T. YARBRAY et al., Plaintiffs and Appellants, v. SHERRY M. OWENS et al., Defendants and Respondents.
Law Offices of Marvin Zinman and Marvin Zinman for Plaintiffs and Appellants. Anderholt Bonnheim & Casden and James D. Turner for Defendants and Respondents.
Appellants contend the trial court erred by granting respondents motion for summary judgment. On our own motion, however, we raised the question of whether this appeal was timely. Pursuant to Government Code section 68081, we gave both sides an opportunity to file further briefs addressing this question. We now conclude that the appeal is indeed untimely, and hence, we must dismiss.
I
PROCEDURAL BACKGROUND
On April 4, 2002, respondents filed a motion for summary judgment. On July 18, 2002, after a hearing, the trial court granted the motion. It directed counsel for respondents to prepare a formal order.
Accordingly, on or about August 9, 2002, counsel for respondents submitted a proposed "Order on Motion for Summary Judgment," together with a proposed "Order of Dismissal," to the trial court. On August 9, 2002, the trial court signed and entered both orders. The "Order of Dismissal" provided: "Summary judgment having been granted in favor of moving parties, now, therefore, it is ordered as follows: [P] The complaint and each of the causes of action by [appellants] against [respondents] are hereby dismissed with prejudice." It did not expressly award costs. On August 12, 2002, respondents served appellants with a "Notice of Dismissal of Case," including a file-stamped copy of the "Order of Dismissal."
Three months later, on or about November 15, 2002, counsel for appellants submitted a proposed "Judgment on Motion for Summary Judgment" to the trial court. On November 18, 2002, the trial court signed and entered the judgment. The judgment expressly awarded costs to respondents. On November 27, 2002, appellants served respondents with a "Notice of Entry of Summary Judgment," including a file— stamped copy of the "Judgment on Motion for Summary Judgment."
On January 17, 2003, appellants filed their notice of appeal.
II
THE APPEAL IS UNTIMELY
The August 9 "Order of Dismissal" was an appealable final judgment. (Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1); Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 345, fn. 3, 228 Cal. Rptr. 504, 721 P.2d 590; Dhondt v. Regents of University of California (1984) 153 Cal. App. 3d 723, 726, fn. 2, 200 Cal. Rptr. 628.) Appellants rely on the familiar principle that an order granting a motion for summary judgment is not appealable; any appeal must be taken from the subsequently entered judgment. (E.g., Berman v. City of Daly City (1993) 21 Cal.App.4th 276, 279, fn. 1; Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1677, fn. 1.) Here, however, the trial court quite properly signed and entered two separate documents — an order granting the motion and an order of dismissal. The latter was the appealable judgment. Accordingly, the August 12 "Notice of Dismissal of Case" constituted notice of entry of judgment. (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518.) Appellants time to appeal expired 60 days after August 12 — that is, on October 11, 2002. (Cal. Rules of Court, rule 2(a)(2); see Safeco Insurance Co. v. Tholen (1981) 117 Cal. App. 3d 685, 691, fn. 2, 173 Cal. Rptr. 23.)
The fact that later, at appellants request, the trial court entered a superfluous document entitled "Judgment" did not restart their time to appeal. (People v. Landon White Bail Bonds (1991) 234 Cal. App. 3d 66, 74, 285 Cal. Rptr. 575; Mulder v. Mendo Wood Products, Inc. (1964) 225 Cal. App. 2d 619, 635, 37 Cal. Rptr. 479; George v. Bekins Van & Storage Co. (1948) 83 Cal. App. 2d 478, 480-482, 189 P.2d 301.) This is true even though the "Judgment," unlike the "Order of Dismissal," expressly awarded costs. (See Kamper v. Mark Hopkins Inc. (1947) 78 Cal. App. 2d 885, 887-888, 178 P.2d 767.) Respondents were entitled to costs regardless of whether the "Order of Dismissal" expressly so provided. (Code Civ. Proc., § 1032 , subd. (b); Williams v. Santa Maria Joint Union High School Dist. (1967) 252 Cal. App. 2d 1010, 1013— 1014, 60 Cal. Rptr. 911; Miles Cal. Co. v. Hawkins (1959) 175 Cal. App. 2d 162, 164, 345 P.2d 492; McMahans of Long Beach v. McMahan Service Corp. (1956) 145 Cal. App. 2d 607, 610, 302 P.2d 847.)
III
DISPOSITION
The appeal is dismissed. Respondents shall recover their costs on appeal against appellants.
We concur: McKINSTER, Acting P.J. and KING, J.