Dawson v. City of Fresno CA5

Filed 5/20/13 Dawson v. City of Fresno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
DAVID DAWSON, as Trustee, etc.,
F066234
Plaintiff and Appellant,
(Super. Ct. No. 12CECG00761)
v.
CITY OF FRESNO, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
David Dawson, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Cornell, J. and Kane, J.
STATEMENT OF THE CASE AND FACTS
Appellant, David Dawson, as Trustee in pro. per., filed a Petition for Writ of
Mandamus and Order to Show Cause in the Fresno County Superior Court naming as
defendant City of Fresno. The petition concerned the issuance of various administrative
citations to appellant regarding violations of the City of Fresno Municipal Code. The
City of Fresno filed an answer and a demurrer. On September 11, 2012, the superior
court sustained the demurrer without leave to amend. Appellant filed a notice of appeal
from the order sustaining the demurrer without leave to amend on November 7, 2012.
According to the Fresno 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 arguing 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.)
DISPOSITION
The appeal in the above entitled action is dismissed as taken from a nonappealable
order. Appellant’s remedy is to secure a final judgment and to file a timely notice of
appeal from the judgment.
2.