Lee v. Medrano CA2/5

Filed 2/24/21 Lee v. Medrano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
CAROLINE S. LEE, B305536
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCP03358)
DIOSDADO MEDRANO,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Edward B. Moreton, Judge. Dismissed.
Jack H. Karpeles for Plaintiff and Appellant.
Allan A. Villanueva for Defendant and Respondent.
I. INTRODUCTION
Plaintiff Caroline S. Lee appeals from the trial court’s order
dismissing her action. Because there is no signed order of
dismissal, we will dismiss the appeal.
II. BACKGROUND
Defendant Diosdado Medrano brought a claim before the
Labor Commissioner against plaintiff, asserting various wage
and hour claims regarding defendant’s employment at a
residential care facility owned by plaintiff. On July 9, 2019, the
Labor Commissioner awarded defendant $313,607.72. Plaintiff
appealed the decision to the trial court. (See Lab. Code, § 98.2.)
On August 28, 2019, the trial court issued a notice setting
the case management conference for October 4, 2019. The notice
advised the parties that “a completed Case Management
Statement . . . must be filed at least 15 calendar days prior to the
Case Management Conference.” The notice further warned that
“if you do not file the Case Management Statement or appear and
effectively participate at the Case Management Conference, the
Court may impose sanctions pursuant to [Los Angeles Superior
Court] Local Rule 3.37, Code of Civil Procedure sections 177.5,
575.2, 583.150, 583.360 and 583.410, Government Code section
68608, subdivision (b), and California Rules of Court, rule 2.2 et
seq.”
On September 26, 2019, defendant filed his case
management statement. Plaintiff did not file a case management
statement in advance of the case management conference and did
not appear at the conference. At the October 4, 2019, hearing on
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the case management conference, the trial court set the matter
for an order to show cause regarding dismissal. The court
scheduled the order to show cause for November 18, 2019.
On November 18, 2019, plaintiff through her trial counsel
filed a case management statement. That same day, the trial
court proceeded with the order to show cause hearing, at which
both parties appeared. According to a minute order, which is not
signed, the court found “no Cause shown by [plaintiff]” and
dismissed plaintiff’s appeal. There is no reporter’s transcript,
agreed upon statement, or settled statement of the hearing.
Further, the record includes no signed order of dismissal. On
January 17, 2020, plaintiff filed a notice of appeal purporting to
appeal the November 18, 2019, order.
III. DISCUSSION
The right to appeal is statutory. (Hernandez v. Restoration
Hardware, Inc. (2018) 4 Cal.5th 260, 267; see Code Civ. Proc.,
§ 904.1.) A dismissal order is appealable as a final judgment
when the order complies with Code of Civil Procedure section
581d, which states that “[a]ll dismissals ordered by the court
shall be in the form of a written order signed by the court and
filed in the action . . . .” (Italics added.) Thus, to be appealable, a
dismissal order must be signed. (City of Los Angeles v. City of Los
Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 157;
Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577–
1578.) An appeal taken from a nonappealable order must be
dismissed because an appellate court is without jurisdiction to
entertain it. (Munoz v. Florentine Gardens (1991) 235 Cal.App.3d
1730, 1732.)
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Plaintiff contends that we should consider the merits of her
appeal notwithstanding the absence of a signed dismissal order,
citing Simmons v. Superior Court (1959) 52 Cal.2d 373(Simmons). We disagree. Simmons is distinguishable as it does
not discuss Code of Civil Procedure section 581d. Moreover, at
the time Simmons was decided, the applicable version of Code of
Civil Procedure section 581d did not require that a dismissal
order be signed by the trial court for it to be considered an
appealable judgment. (Compare Stats. 1959, ch. 346, p. 2269, § 1
[“All dismissals ordered by the court shall be entered upon the
minutes thereof . . . and such orders when so entered or filed
shall constitute judgments and be effective for all purposes”],
with Stats. 1963, ch. 875, p. 2123, § 1 [“All dismissals ordered by
the court shall be in the form of a written order signed by the
court and filed in the action . . . and such orders when so filed
shall constitute judgments and be effective for all purposes”].)
It is undisputed that the November 11, 2019, order
dismissing plaintiff’s action is not signed. We have no
jurisdiction to hear plaintiff’s appeal from that order and
therefore dismiss her appeal. Plaintiff is thus free, if she wishes,
to pursue whatever means she believes is most expedient to
perfect her appeal.
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IV. DISPOSITION
The appeal is dismissed. In the interests of justice, each
party is to bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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