SHEPARDSON v. McLELLAN (1962)

On this petition for rehearing, petitioners claim that this court did not pass on certain points attempted to be raised on the appeal. Particular reference is made to the attempted appeal from a portion of the judgment entered against defendant Milford George McLellan, as indicated in his notice of appeal.

It is pointed out in defendants' brief that plaintiffs have accepted $10,000, plus interest and costs, as partial satisfaction of this judgment. They now seek a reversal of a portion of that judgment because of the claim that the trial court erroneously sustained a demurrer to one cause of action of the complaint without leave to amend, based on a cause of action for willful misconduct in addition to the cause of action for negligence. The fact that more than one cause of action is involved does not change the rule that there can be only one judgment which must dispose of the entire case. (Murphy v. Fong Shuck, 151 Cal.App.2d 64, 311 P.2d 80.) Even though it should be found that the trial court erred in sustaining the demurrer without leave to amend as to the willful misconduct cause of action, we perceive no authority of this court to reverse the judgment in this respect without reversing the entire judgment. Plaintiffs do not desire to have us do this.

There is no appeal from an order sustaining a demurrer without leave to amend to a portion or the whole of a pleading. It must be followed by a judgment of dismissal. (Moraga v. Emeric, 4 Cal. 308.)

Whether the entire judgment in the instant case was final in view of the failure to enter judgment of dismissal as to the cause of action alleging willful misconduct is open to question. See Gombos v. Ashe, 158 Cal.App.2d 517, 518, 322 P.2d 933, which appears to determine that issue. The necessary procedure to follow is indicated under the circumstances here related. It was there stated that a difference in subject matter between the various counts or causes of action of a complaint does not prevent the rule from applying that no final judgment can be given until final disposition of all the counts is made. (3 Witkin, California Procedure, 1961 Supp., sec. 14, p. 111; Johnson v. Master Fan Corp., 181 Cal.App.2d 569, 5 Cal.Rptr. 187; Wilson v. Wilson, 96 Cal.App.2d 589, 216 P.2d 104.)

There has been no judgment of dismissal as to the willful misconduct cause of action.

The opinion sufficiently disposes of the appeal in reference to the judgment of nonsuit.

As thus modified, the petition for rehearing is denied.

PER CURIAM.