Dagning v. Nursetech CA3 ( 2014 )

Filed 12/17/14 Dagning v. Nursetech CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
JOSEPH DAGNINO et al., C071927
Plaintiffs and Respondents, (Super. Ct. No. 34-2010-
00081391-CU-PO-GDS)
v.
NURSETECH, INC.,
Defendant;
SECURITAS, INC.,
Claimant and Appellant.
This case presents an issue of the appealability of the underlying ruling. Since we
conclude the ruling is not appealable, we shall dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
In this personal injury action, plaintiffs Joseph and Marcella Dagnino and
defendant Nursetech, Inc., entered into a settlement prior to trial, and plaintiffs
1
voluntarily dismissed the action with prejudice. Securitas, Inc., (Securitas) was not a
party to the action, but had filed a notice of lien against any judgment or settlement based
on sums it had paid as workers’ compensation benefits to Joseph Dagnino. Securitas had
also attempted to file a complaint in intervention in the action, but the trial court denied
the motion as untimely, the motion having been filed one year eight months after the
complaint was filed and the hearing on the motion occurring only 10 days before the trial
was scheduled to commence.
On May 1, 2012, after the notice of settlement of the case was filed on April 13,
2012, Securitas filed a motion to determine the lien amount to be applied to the
settlement. The hearing on the motion was set for June 22, 2012. On May 11, 2012,
plaintiffs filed a request for dismissal of the action with prejudice, which was entered by
the clerk the same day. On June 25, 2012, the trial court heard Sercuritas’s motion, and
dropped the motion for lack of jurisdiction. It is from this minute order dropping the
motion that Securitas appeals.
DISCUSSION
Plaintiffs contend the appeal must be dismissed because the order appealed from
was not appealable. We agree.
It is the appellant’s burden to explain why the order appealed from is appealable.
(Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536,
557.) Securitas’s explanation of appealability, in its entirety, is as follows: “This is an
appeal from a final order made appealable by Code of Civil Procedure section 904.1
[subdivision] (a)(1).”
Code of Civil Procedure section 904.1, subdivision (a)(1) provides in full: “(a) An
appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than
in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment,
except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and
(11), or (B) a judgment of contempt that is made final and conclusive by Section 1222.”
2
Thus, the particular statute cited by Securitas, Code of Civil Procedure section
904.1, subdivision (a)(1), makes judgments appealable. With respect to this subdivision,
the obvious issue is that the trial court’s minute order “dropping” Securitas’s motion was
not a judgment.
The larger problem in terms of appealability is that there was no judgment at all in
this case because the plaintiff voluntarily dismissed the case. “A voluntary dismissal
under Code of Civil Procedure section 581, subdivision (b)(1) by written request to the
clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the
dismissal. [Citations.] A voluntary dismissal is a ministerial act, not a judicial act, and
not appealable.” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th
1357, 1364-1365.)
Because there was no judgment, the minute order also does not comply with Code
of Civil Procedure, section 904.1, subdivision (a)(2) which makes appealable “an order
made after a judgment made appealable by paragraph (1).” Additionally, the minute
order does not fall within any of the other enumerated appealable orders in section 904.1.
“[A] party possesses no right of appeal except as provided by statute . . . .”
Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78.) “[A] reviewing court is ‘without
jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss
such an appeal upon its own motion. [Citations.]’ [Citation.]” (In re Mario C. (2004)
124 Cal.App.4th 1303, 1307.) Since no appealable judgment or order is before us, we
lack jurisdiction to address the merits of Securitas’s claim.
3
DISPOSITION
The appeal is dismissed. Plaintiffs are awarded costs on appeal.
BLEASE , Acting P. J.
We concur:
HULL , J.
MURRAY , J.
4