Martin v. My Car Agent CA4/3 ( 2014 )

Filed 4/24/14 Martin v. My Car Agent CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAWN MARTIN,
Plaintiff and Appellant, G048985
v. (Super. Ct. No. 30-2011-00526774)
MY CAR AGENT, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Dismissed.
Liberty & Associates, Louis A. Liberty and Ian Otto for Plaintiff and
Appellant.
Law Offices of Christopher P. Ruiz and Christopher P. Ruiz for Defendant
and Respondent.
* * *
Plaintiff Dawn Martin appeals from an order awarding her a reduced
amount of attorney fees. Because the order is nonappealable, we dismiss the appeal.
FACTS
Plaintiff sued defendant My Car Agent for violating the Automobile Sales
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Finance Act (Civ. Code, § 2981 et seq.) and other causes of action. The parties
subsequently entered into a settlement agreement, whereby defendant would pay plaintiff
$11,000 and release her from any obligations under the sales contract, and plaintiff would
dismiss her complaint with prejudice. The parties agreed to bear their own attorney fees,
except as provided in section V of the settlement agreement. Section V provided that the
parties would meet and try to resolve plaintiff’s claim for attorney fees; however, if they
were unable to reach a resolution, then plaintiff would file a motion for attorney fees with
the court, but plaintiff would be deemed the prevailing party on her Automobile Sales
Finance Act claim only.
Plaintiff filed a motion with the court for around $262,000 in attorney fees.
Defendant opposed plaintiff’s motion, arguing it violated the settlement agreement and
that the amount of fees requested was excessive, unreasonable, and unsupported. In
plaintiff’s reply to defendant’s opposition, she argued her motion should be granted in its
entirety because she had recovered all that she sought in her lawsuit.
On July 11, 2013, the court granted plaintiff’s motion, but reduced the
amount of attorney fees to $32,581.
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Plaintiff also named another defendant who is not a party to this appeal.
References in this opinion to “defendant” refer to My Car Agent.
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DISCUSSION
Although plaintiff’s opening brief states she appeals from the court’s July
11, 2013 ruling, her counsel filed a notice of appeal (on the Judicial Council of California
form) and (1) left blank the section for the challenged ruling’s date, and (2) checked the
box for a postjudgment order, even though the record contains no judgment.
Because the issue of nonappealability is jurisdictional, we requested
supplemental letter briefs from the parties on the issues of whether the attorney fee order
is appealable when the record on appeal does not contain a final judgment and whether
the appeal should be dismissed. (Gov. Code, § 68081.) In plaintiff’s supplemental letter
brief, she acknowledges that “there is no final judgment dismissing the case,” but
nonetheless requests that we move forward with the appeal.
Under the “one final judgment rule,” an appeal may be taken from a final
judgment “that ‘“terminates the proceeding in the lower court by completely disposing of
the matter in controversy.”’” (In re Daniel K. (1998) 61 Cal. App. 4th 661, 671; Code
Civ. Proc., § 904.1, subd. (a)(1).) Orders are appealable if they have been expressly
designated by statute as appealable orders. (Code Civ. Proc., § 904.1, subd. (a)(2) - (13).)
“[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.’” (In re Mario C.
(2004) 124 Cal. App. 4th 1303, 1307; Jennings v. Marralle (1994) 8 Cal. 4th 121, 126.)
“[T]he question whether an order is appealable goes to the jurisdiction of an appellate
court, which is not a matter of shades of grey but rather of black or white.” (Farwell v.
Sunset Mesa Property Owners Assn., Inc. (2008) 163 Cal. App. 4th 1545, 1550.)
Accordingly, this appeal must be dismissed.
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DISPOSITION
We dismiss the appeal. Defendant shall recover its costs on appeal.
IKOLA, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.
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