Chung & Associates, LLC v. Mendoza CA2/1

Filed 2/18/21 Chung & Associates, LLC v. Mendoza CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
CHUNG & ASSOCIATES, B297304
LLC,
(Los Angeles County
Plaintiff and Super. Ct. No. BC667815)
Respondent,
v.
RICARDO MENDOZA, et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Dismissed.
Law Office of Michael A. Long and Michael A. Long for
Defendants and Appellants.
The Kernan Law Firm, S. Michael Kernan, and R. Paul
Katrinak for Plaintiff and Respondent.
____________________________
The trial court entered an order granting Chung &
Associates, LLC’s (C&A) motion for terminating sanctions
against Ricardo Mendoza and Xavier Ruffin and striking their
answer to C&A’s complaint and their cross-complaint against
C&A.
Mendoza and Ruffin moved the trial court for an order
under Code of Civil Procedure section 473(b) vacating its order
granting C&A’s request for terminating sanctions.1 The trial
court “fail[ed] to find that a mistake of attorney occurred and
denie[d] the motion.”
Mendoza and Ruffin then filed a motion under section 1008
asking the trial court to reconsider its order denying their
request under section 473(b) to vacate its earlier order striking
their answer and cross-complaint. The trial court denied the
motion for reconsideration on March 25, 2019. On April 29, 2019,
Mendoza and Ruffin filed a notice of appeal, and identified the
appeal as from “[a]n order or judgment under [section] 904.1[,
subdivision] (a)(3)-(13).”
In a motion to dismiss the appeal, C&A argued that none of
the orders from which Mendoza and Ruffin purport to appeal are
appealable. We agree with C&A and will dismiss the appeal.
BACKGROUND
“C&A employed Mendoza and Ruffin from 2016 to January
(Ruffin) and April (Mendoza) 2017. In September 2017, C&A
filed suit against Mendoza and Ruffin, stating a variety of causes
of action based on alleged breaches of Mendoza and Ruffin’s
Further statutory references are to the Code of Civil
1
Procedure.
2
employment agreements and alleged post-employment retention
and use of C&A’s proprietary information. C&A filed a first
amended complaint in December 2017 based on the same core
allegations.” (Mendoza v. Chung & Associates, LLC (Oct. 28,
2020, B294223, at p. 2) [nonpub. opn.] (Mendoza I).) Mendoza
and Ruffin answered the amended complaint and cross-
complained against C&A on March 13, 2018.
C&A filed a motion for terminating sanctions on November
13, 2018. In its order granting the motion, the trial court struck
Mendoza and Ruffin’s answer to the complaint and their cross-
complaint.
On January 22, 2019, Mendoza and Ruffin filed a motion
asking the trial court to vacate its order striking their answer
and cross-complaint under section 473, subdivision (b). The trial
court heard and denied the motion on February 20, 2019.
On February 28, 2019, Ruffin and Mendoza moved the
court under section 1008 to reconsider its order denying their
motion to vacate under section 473, subdivision (b) its order
striking their answer and cross-complaint. The trial court heard
the motion on March 22, 2019, and on March 25, 2019 issued an
order denying Mendoza and Ruffin’s motion for reconsideration
and also denying C&A’s request for monetary sanctions.
Mendoza and Ruffin filed a notice of appeal on April 29,
2019 on Judicial Council Forms, form APP-002 and checked the
box to indicate that they were appealing from the trial court’s
order entered February 26, 2019, “[a]n order or judgment under
Code of Civil Procedure, § 904.1(a)(3)-(13).”
C&A filed a motion to dismiss the appeal.
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DISCUSSION
“A reviewing court has jurisdiction over a direct appeal only
when there is (1) an appealable order or (2) an appealable
judgment.” (Griset v. Fair Political Practices Com’n (2001) 25
Cal.4th 688, 696 (Griset).) “A trial court’s order is appealable
when it is made so by statute.” (Ibid.)
“The existence of an appealable order or judgment is a
jurisdictional prerequisite to an appeal. [Citation.] Accordingly,
if the order or judgment is not appealable, the appeal must be
dismissed.” (Canandaigua Wine Co., Inc. v. County of Madera
(2009) 177 Cal.App.4th 298, 302 (Canandaigua).)
C&A contends none of the orders from which this court
might construe Mendoza and Ruffin’s notice of appeal to have
been taken is appealable. We are therefore without jurisdiction,
C&A explains, to hear Mendoza and Ruffin’s appeal. We agree
with C&A and will dismiss the appeal.
None of the orders from which we might construe the notice
of appeal to have been taken is, on its face, appealable. “An order
granting terminating sanctions is not appealable, and the losing
party must await the entry of the order of dismissal or judgment
unless the terminating order is inextricably intertwined with
another, appealable order.” (Nickell v. Matlock (2012) 206
Cal.App.4th 934, 940.) Similarly, “an appeal does not lie from
[an] order striking [a] cross-complaint where, as here, the parties
to the complaint and cross-complaint are identical.” (Fraser-
Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d
201, 207.) While an order denying a motion to vacate a judgment
under section 473 is appealable, other orders denying motions to
vacate are generally not: “ ‘If the original ruling is not final and
appealable in its own right, then it is not a judgment and an
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order denying reconsideration cannot be appealable. “[A]n appeal
may not be taken from a nonappealable order by the device of
moving to vacate the order and appealing from a ruling denying
the motion.” ’ ” (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40
Cal.3d 327, 331; Gassner v. Stasa (2018) 30 Cal.App.5th 346, 355;
Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th
290, 294, fn. 4.) And “[a]n order denying a motion for
reconsideration is not independently appealable.” (Mack v. All
Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 937, fn.
1.)
Mendoza and Ruffin contend their notice of appeal is from
an appealable order on two bases. First, they argue that the trial
court’s order “effectively disposes of the entire case,” and should,
therefore, be viewed as a final judgment. Second, they claim that
“a terminating sanction involving discovery . . . is enough to
constitute a dismissal”; Mendoza and Ruffin repeatedly argue
that “a terminating sanction is deemed a dismissal,” and
therefore constitutes an appealable order.
Mendoza and Ruffin rely on Canandaigua for their
assertion that because—in their estimation—the trial court’s
order striking their answer and cross-complaint “effectively
disposes of the entire case,” it constitutes an appealable order.
Canandaigua informs: “[A]n order constitutes a final judgment
despite other causes of action remaining if the order effectively
disposes of the entire case. For example, an order is appealable if
it resolves an allegation that is essential to all of the causes of
action.” (Canandaigua, supra, 177 Cal.App.4th at p. 303, italics
added.) Canandaigua cites Griset for that proposition.
Griset explains the “standard to determine whether an
adjudication is final and appealable” in depth: “ ‘It is not the
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form of the decree but the substance and effect of the
adjudication which is determinative. As a general test, which
must be adapted to the particular circumstances of the individual
case, it may be said that where no issue is left for future
consideration except the fact of compliance or noncompliance
with the terms of the first decree, that decree is final, but where
anything further in the nature of judicial action on the part of the
court is essential to a final determination of the rights of the
parties, the decree is interlocutory.’ ” (Griset, supra, 25 Cal.4th at
p. 698, italics added.) “In multiparty actions, a judgment
disposing of all the issues as to one party is appealable even if
issues remain as to other parties.” (Martis Camp Community
Association v. County of Placer (2020) 53 Cal.App.5th 569, 588.)
Neither the order regarding terminating sanctions, nor the
order denying the motion to vacate that order, nor the order
denying the motion to reconsider the motion to vacate disposes of
all issues as to any party in the litigation. If any of those orders
had done so, the trial court could have entered judgment as to that
party, and that judgment would have been appealable.
Mendoza and Ruffin’s second argument rests on a
misunderstanding of the case it relies on. Mendoza and Ruffin
incorrectly assert several times in their opposition to C&A’s
motion to dismiss that “terminating sanctions are . . . deemed a
‘dismissal entered’ for purposes of appeal.” For that proposition,
Mendoza and Ruffin rely on Rodriguez v. Brill (2015) 234
Cal.App.4th 715. The language in Rodriguez v. Brill that leads
Mendoza and Ruffin to their conclusion is: “[A] judgment of
dismissal that implements a terminating sanction for discovery
abuse is a ‘dismissal entered’ for purposes of section 473(b).” (Id.
at p. 719.)
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Mendoza and Ruffin’s argument ignores that it is a
judgment from which Rodriguez appealed. It was a “judgment of
dismissal implementing a terminating sanction for discovery
abuse” that was at issue on appeal.2 The record here discloses no
judgment.
Mendoza and Ruffin also appear to rely on the pendency of
a related appeal to support jurisdiction in this matter. They
argue that the pendency of their appeal in Mendoza I conveys
appellate jurisdiction in this matter. We disagree. As an initial
matter, we dismissed Mendoza I for lack of jurisdiction because
the notice of appeal in that matter was not timely. (Mendoza I,
supra, B294223, at pp. 5-6.) Section 904.1, subdivision (a)(13),
which makes appealable “order[s] granting or denying a special
motion to strike under [s]ection 425.16,” would not render
appealable any of the orders from which we might deem this
appeal to have been taken.
Mendoza and Ruffin have failed to meet their obligation to
demonstrate the existence of an appealable order.
2The trial court in Rodriguez struck the complaint as a
terminating sanction and entered judgment of dismissal for the
defendant. (Rodriguez, supra, 234 Cal.App.4th at p. 719.) There
is no mention in the opinion of the defendant having filed a cross-
complaint.
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DISPOSITION
The appeal is dismissed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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