Pritchett v. Cline CA5

Filed 5/14/13 Pritchett v. Cline CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
JESSIE D. PRITCHETT,
F066534
Plaintiff and Appellant,
(Super. Ct. No. VCU248303)
v.
PHILLIP CLINE, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Melinda M.
Reed, Judge.
Jessie D. Pritchett, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Levy, J. and Poochigian, J.
STATEMENT OF THE CASE AND FACTS
Appellant, Jessie D. Pritchett, in pro. per., filed two complaints in the Tulare
County Superior Court naming as defendant Tulare County District Attorney Phillip
Cline, claiming defendant Cline breached a plea agreement entered into by appellant in a
criminal case. (It appears the complaints were filed under the same superior court
number.) Defendant Cline filed a demurrer. On December 10, 2012, the superior court
sustained the demurrer without leave to amend. Appellant filed a notice of appeal from
the orders sustaining the demurrer without leave to amend on December 26, 2012.
According to the Tulare County Superior Court docket, no final judgment has been
entered.
This court issued a briefing order granting appellant time to explain why this court
should not dismiss his appeal for lack of a judgment or appealable order. Appellant
submitted a letter brief stating that he “is unlikely to be provided with a judgment of
dismissal from the Honorable Judge Reed based on prejudice and as such will proceed on
letter brief.” The letter thereafter addresses the merits of the appeal. The letter brief
failed to address the issue of appealability.
DISCUSSION
An order sustaining a demurrer, whether with or without leave to amend, is not
appealable; appeal is proper only after entry of a dismissal on such an order. (Sisemore v.
Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
The appeal in the above entitled action is dismissed on the ground appellant
attempts to appeal from an order sustaining a demurrer without leave to amend. Such an
order is not appealable and this court declines to deem the order to incorporate a
judgment of dismissal. Appeal is proper only after entry of a judgment of dismissal.
(Sisemore v. Master Financial, Inc, supra, 151 Cal.App.4th at p. 1396.)
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DISPOSITION
The appeal from the order sustaining the demurrer is dismissed. Appellant’s
remedy is to secure a final judgment and to file a timely notice of appeal from the
judgment.
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