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Court of Appeal, Sixth District, California.

Shirley CURRIE, Plaintiff and Appellant, v. O'CONNOR HOSPITAL, et al., Defendants and Respondents.

No. H010151.

Decided: December 20, 1993

James Moore King, Santa Cruz, for plaintiff-appellant. Crosby, Heafey, Roach & May, Michael J. Loeb, Joseph P. Mascovich, Kenneth M. Seeger, Kimberly S. Stanley, and Timothy O'Toole, Oakland, for defendants-respondents.

In an action for wrongful termination, defendant O'Connor Hospital successfully moved for summary judgment by establishing that plaintiff Shirley Currie was terminated in accordance with defendant's written lay-off policy implemented to alleviate a financial crisis.   Following entry of judgment plaintiff “appealed” from the order granting defendant's motion.   We dismiss the appeal because the order is nonappealable.

The trial court filed its order on May 26, 1992.   It filed its judgment on June 11, and defendant served notice of entry of judgment on June 15.   On July 31, plaintiff filed a notice of appeal that appealed “from the Order Granting Summary Judgment In Favor of Defendant O'CONNOR HOSPITAL entered on May 26, 1992.”

In the section of plaintiff's opening brief entitled “Rule 13 Statement,” plaintiff states:  “As is required by Rule 13 of the California Rules of Court, counsel signing this brief on behalf of Appellant CURRIE represents that this appeal is taken from an order which finally disposes of all issues between the parties.”

“ ‘In California the right to appeal in civil actions is wholly statutory․   In order to exercise that right an appellant must have standing to appeal, and must take an appeal from a statutorily declared appealable judgment or order.’  [Citation.]”  (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21, 6 Cal.Rptr.2d 454.)   Various statutes and rules exist to guide a party in exercising his or her right of appeal.

The pertinent statute is Code of Civil Procedure section 904.1.   It generally states that an appeal may be taken from a judgment (with certain exceptions) and certain types of orders.

Two pertinent rules are California Rules of Court, rules 1(a) and 13.   Rule 1(a) states:  “An appeal from a judgment of a superior court or from a particular part thereof is taken by filing with the clerk of that court a notice of appeal therefrom.   The notice shall be signed by the appellant or by his attorney and shall be sufficient if it states in substance that the appellant appeals from a specified judgment or a particular part thereof.   A notice of appeal shall be liberally construed in favor of its sufficiency․”  Rule 13 states, in relevant part:  “The opening brief shall 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.”

 An order granting a motion for summary judgment is not among the types of orders specified in Code of Civil Procedure section 904.1.   In short, “[a]n order granting a motion for summary judgment is a nonappealable preliminary order.”  (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445, 213 Cal.Rptr. 314.)

“For many years, this 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.”   (Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1179, 16 Cal.Rptr.2d 814.)   This case presents a more aggravated circumstance in that plaintiff “appealed” from a nonappealable preliminary order after entry of judgment.

 In the past, courts have “saved” erroneous appeals of orders granting summary judgment by construing the order so as to incorporate a judgment and the notice of appeal to be from the judgment.  (See e.g., Avila v. Standard Oil Co., supra, 167 Cal.App.3d at p. 445, 213 Cal.Rptr. 314.)  “The trend of recent cases of the Courts of Appeal is to hold appellate counsel to strict account for ensuring that their appeal rights are perfected according to the applicable statutes and rules of court.”  (Jordan v. Malone, supra, 5 Cal.App.4th at p. 22, 6 Cal.Rptr.2d 454, fn. omitted [appeal from decision that judgment should enter dismissed];  see, e.g., Shpiller v. Harry C's Redlands, supra, 13 Cal.App.4th at pp. 1178–1181, 16 Cal.Rptr.2d 814 [appeal from notice of ruling dismissed];  Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1054–1056, 11 Cal.Rptr.2d 845 [appeal from nonappealable order dismissed];  Modica v. Merin (1991) 234 Cal.App.3d 1072, 1073–1075, 285 Cal.Rptr. 673 [appeal from notice of entry of judgment after grant of summary judgment dismissed];  Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730, 1732, 1 Cal.Rptr.2d 609 [appeal from nonappealable order dismissed];  see Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671, 242 Cal.Rptr. 84 [“We are wearying of ‘appeals' from clearly nonappealable orders.”];   compare Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 538–539, 4 Cal.Rptr.2d 361 [appeal from judgment where no judgment entered construed as appeal from nonappealable order granting summary judgment and “saved” since appellant could go back to superior court and obtain a judgment and appeal again if appeal was dismissed].)

We dismiss this appeal in keeping with the general trend.

We emphasize that it is elementary that an order granting summary judgment is nonappealable despite the frequency of “appeals” from such orders.   And that this case is not a “premature appeal” within the meaning of California Rules of Court, rule 2(c).1  Here, the order and judgment were regularly filed;  the notice of appeal was filed thereafter and specifies that the appeal is from the order;  plaintiff's opening brief confirms that the appeal is from the order;  and there is no mistake apparent such as might occur when filing a notice of appeal in haste—the notice was filed some 50 days after entry of the judgment giving plaintiff ample time for reflection.   There simply is no room for “liberal construction” of plaintiff's notice of appeal.

“It is not that we are insensitive to the plight of plaintiff's counsel but it is a plight not of our making.   Nor is the problem here one that occurs only infrequently.   Despite persistent efforts by the appellate courts to educate the bar, attempts to appeal from nonappealable orders of this nature continue unabated in substantial numbers․  [Cases indulging in the fiction that a nonappealable order incorporates a judgment were published] in the hope that focusing attention on the problem ․ would effect a painless solution.   Alas, this practice had the unintended and lamentable consequence that counsel came increasingly to rely upon the court's indulgence rather than to take the procedural steps necessary to perfect an appeal.”  (Modica v. Merin, supra, 234 Cal.App.3d at p. 1074, 285 Cal.Rptr. 673.)

“[T]he proper role of an appellate court is to adhere to and apply Code of Civil Procedure section 904.1, not to devise and employ strategies for its wholesale avoidance.   As a practical matter, experience teaches that far from solving the problem, the latter approach only exacerbates it.”   (Modica v. Merin, supra, 234 Cal.App.3d at p. 1075, 285 Cal.Rptr. 673.)

The appeal is dismissed.


1.   California Rules of Court, rule 2(c), provides:  “A notice of appeal filed prior to entry of the judgment, but after its rendition, shall be valid and shall be deemed to have been filed immediately after entry.   A notice of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment.”

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.