Rademacher v. American Broadcasting Companies CA2/5 ( 2024 )

Filed 9/13/24 Rademacher v. American Broadcasting Companies CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
INGO RADEMACHER, B331248
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV45383)
AMERICAN BROADCASTING
COMPANIES, INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen I. Goorvitch, Judge. Dismissed.
JW Howard/Attorneys, John W. Howard and Scott J. Street
for Plaintiff and Appellant.
Paul Hastings, Steven Marenberg, Deisy Castro and Teresa
M. Greider for Defendant and Respondent.
________________________
Plaintiff and appellant Ingo Rademacher purports to
appeal from an order granting summary judgment in favor of
defendant and respondent American Broadcasting Companies,
Inc. (ABC) in this employment-related action. Rademacher
contends triable issues of fact exist as to whether ABC
implemented a vaccine policy that violated his privacy rights,
failed to accommodate his request for a religious exemption, and
wrongfully terminated him, in breach of his contract, in
retaliation for political commentary. We conclude, however, that
the order is nonappealable, and therefore, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Rademacher, who is an actor on the television show
General Hospital, filed his original complaint against ABC in
December 2021. On October 4, 2022, he filed the operative
second amended complaint for several causes of action, including
violation of his right to privacy, employment discrimination on
the basis of his religious beliefs, wrongful termination in violation
of public policy, and breach of his employment contract. He
alleged ABC discriminated against him based on his religious
and political beliefs by refusing his request for a religious
exemption to ABC’s Covid-19 vaccine requirement.
ABC filed a motion for summary judgment and supporting
evidence to show ABC’s parent company adopted the vaccine
policy based on careful review of the available scientific evidence
and Rademacher withheld the information necessary to support
his request for a religious exemption.
2
Rademacher filed an opposition to the motion for summary
judgment and supporting evidence. He argued that the vaccine
policy violated his right to bodily autonomy, the decisionmaking
process to impose the vaccine mandate was arbitrary and
capricious, and further discovery was required to oppose the
motion for summary judgment. ABC had no reason to doubt the
sincerity of his religious beliefs but made no effort to
accommodate them, and terminated him based on his political
commentary on social media.
ABC filed a reply arguing that no triable issues of fact
existed and Rademacher was not entitled to a further
continuance for discovery. A hearing on ABC’s motion for
summary judgment and Rademacher’s motion for summary
adjudication was held on April 5, 2023. The trial court took the
matter under submission. On June 5, 2023, the trial court issued
a written order granting ABC’s motion for summary judgment
and denying Rademacher’s motion for summary adjudication.
Rademacher filed a notice of appeal from the June 5, 2023
order, selecting the box for an appeal from a “[j]udgment after an
order granting a summary judgment motion.”
On September 8, 2023, this appellate court notified
Rademacher that the order attached to his civil case information
statement was not a final judgment entered after an order
granting summary judgment and was therefore nonappealable.
This court requested that Rademacher provide an appealable
judgment within 15 days, or if no final judgment had been
entered, to demonstrate in writing why the appeal should not be
dismissed.
The parties filed a joint stipulation requesting this court
construe the June 5, 2023 order as incorporating an appealable
3
judgment in the interests of justice and to avoid delay. They
argued that the trial court’s failure to enter a final judgment was
an oversight that should not prevent this appellate court from
proceeding with the appeal based on the existing notice of appeal.
This court issued an order deferring the final determination of
jurisdiction to the Division assigned to hear the appeal.
DISCUSSION
The parties concede that the June 5, 2023 order is
nonappealable. They contend this court should construe the
order to incorporate an appealable judgment in the interests of
justice and to avoid delay. We conclude that we do not have
jurisdiction to review the nonappealable order, and to the extent
that we have discretion to amend or construe the order to
incorporate a final judgment, we decline to do so.
“In California, the right to appeal is wholly statutory.
[Citation.] In order to exercise that right an appellant must take
an appeal from a statutorily declared appealable judgment or
order (Code Civ. Proc., § 904.1) . . . [¶] An order granting a
motion for summary judgment is not among the types of orders
specified in Code of Civil Procedure section 904.1.” (Allabach v.
Santa Clara County Fair Ass’n. (1996) 46 Cal.App.4th 1007, 1010
(Allabach).) In addition to the provisions for reconsideration of a
ruling provided in Code of Civil Procedure sections 473 and 1008,
the trial court has inherent authority to change its decision at
any time prior to the entry of judgment. (Darling, Hall & Rae v.
Kritt (1999) 75 Cal.App.4th 1148, 1156.)
In this case, we have only a nonappealable order granting
the motion for summary judgment and no judgment. The
4
statutory prerequisite for appellate review is absent. This case is
distinguishable from those in which an appeal is taken
prematurely from an order granting summary judgment, but a
judgment was subsequently entered. In those circumstances,
courts often construe the order as taken from the subsequent
judgment. (See, e.g., Allabach, supra, 46 Cal.App.4th at p. 1010.)
Some appellate courts have simply declared nonappealable
orders to include appealable judgments (see, e.g., Levy v.
Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7), but as
the appellate court in Shpiller v. Harry C's Redlands (1993) 13
Cal.App.4th 1177, 1180 (Shpiller) explained: “[T]his court, and
most, if not all appellate courts, have repeatedly admonished
appellants about the failure to make the preliminary and
fundamental determination that what they are appealing from is,
in fact, an appealable order or judgment. (This, of course,
assumes the existence of an order or judgment.) Such
admonishments being of little avail, California Rules of Court,
rule 13 was amended, effective July 1, 1989, to require that every
opening brief contain ‘either a statement that the appeal is from
a judgment that finally disposes of all issues between the parties
or a statement explaining why the order or nonfinal judgment is
appealable.’ [Fn. omitted.] [¶] It is our experience that, despite
the amendment of rule 13 of the California Rules of Court,
parties continue to ‘appeal’ from nonexistent orders and
judgments and/or from documents which are not even orders or
judgments.” (Id. at p. 1179.) The Shpiller court dismissed the
appeal in that case.
This Division provided a similar warning in Hill v. City of
Long Beach (1995) 33 Cal.App.4th 1684, 1695–1696, by refusing
to rescue a defective appeal from an order sustaining a demurrer
5
where no judgment of dismissal had been entered. Noting the
appellant’s resistance to obtaining an appealable order, the court
advised of “the trend in this district and elsewhere to be less
indulgent of parties who fail to perfect their rights of appeal.”
(Ibid.)
As noted above, we are mindful that courts have sometimes
made exceptions to the rule in the name of judicial efficiency, but
we conclude that the better practice is to recognize the strict
statutory limitations of appellate jurisdiction, particularly where,
as here, the parties have been asked to furnish a judgment and
have demonstrated no inability to obtain one. (Cf. Levy v.
Skywalker Sound, supra, 108 Cal.App.4th at p. 761, fn. 7 [where
neither court, nor parties raised lack of appealable judgment
prior to submission, appellate court construed order granting
summary judgment to incorporate appealable judgment].)
Obtaining a judgment after an interlocutory order should not be
unnecessarily confusing, expensive, or time-consuming. Further,
following the parties’ submission of their stipulation, this court
advised them that the issue of jurisdiction would be addressed by
the panel. The parties proceeded to brief the merits without
attempting to remedy the lack of a judgment and omitted a
statement of appealability from their briefs. Given the long-
settled procedure for obtaining a judgment and initiating an
appeal, the ample time and opportunity to obtain and supply an
appealable judgment, and the lack of unique extenuating
circumstances, to the extent that this court has discretion to
construe or amend the trial court’s orders to include a final
judgment, we decline to do so and dismiss the appeal for lack of
jurisdiction. If the issues between the parties are eventually
6
resolved in a final judgment, Rademacher may then pursue an
appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
We concur:
KIM, J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
7