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Farmers Insurance Exchange v. Elizabeth Karnazes

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


December 9, 2010

FARMERS INSURANCE EXCHANGE, PLAINTIFF AND RESPONDENT,
v.
ELIZABETH KARNAZES, DEFENDANT AND APPELLANT.

(San Mateo County Super. Ct. No. 461610)

Farrmers Ins. Exchange v. Karnazes

CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

BY THE COURT:*fn1

Appellant Elizabeth Karnazes, in propria persona, purports to appeal from: (1) an order discharging respondent Farmers Insurance Exchange (Farmers) from liability in an interpleader action; and (2) an order denying her attempt to file a cross-complaint against Farmers in the interpleader action.

We dismiss the appeal on our own motion.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2007, Farmers filed an interpleader action to have the court determine the proper distribution of a $75,001 settlement in a lawsuit between its insureds. From what we can glean from the record, the $75,001 to be paid to Farmers insureds was allegedly the subject of liens filed by Karnazes and others. In September 2007, Farmers moved for an order discharging it and for costs and attorney fees pursuant to Code of Civil Procedure section 386. Farmers withdrew its request for attorney fees and, on February 27, 2008, the court granted Farmers's motion. The order provided, "Farmers . . . is discharged from this action and is discharged from any and all liability as to the $75,001 sum deposited with the court by [Farmers]." The court awarded Farmers $380 in costs.

In December 2008, Karnazes filed a motion seeking to file a cross-complaint against Farmers and others. On February 19, 2009, the court denied the motion. In April 2009, Karnazes filed a notice of appeal purporting to appeal from the order denying her leave to file a cross-complaint. In July 2009, Karnazes filed an amended notice of appeal adding the February 27, 2008 order discharging Farmers to her original notice of appeal.

DISCUSSION

Karnazes has attempted to appeal from an order discharging Farmers from the interpleader action and awarding costs. That order is not appealable. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) It is well settled that interlocutory orders are not appealable. (Code Civ. Proc., § 904.1, subd. (a)(1).) An interpleader order dismissing the plaintiff and requiring the remaining parties to resolve the dispute regarding the deposited funds is interlocutory and, as a result, is not appealable until the ultimate resolution of claims. (Lincoln Nat. Life Ins. Co. v. Mitchell (1974) 41 Cal.App.3d 16, 20.)

The appeal from the order discharging Farmers from the interpleader action is also untimely because it was filed over a year after the court discharged Farmers. (Cal. Rules of Court, rule 8.104(a) (hereafter rule) [setting forth deadlines to review a notice of appeal]; rule 8.104(b) ["If a notice of appeal is filed late, the reviewing court must dismiss the appeal"]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (Rutter Group 2010) ¶ 3.4, p. 3-1 [a notice of appeal "must be filed . . . within the time periods established by [rules] 8.104 and 8.108. These deadlines are jurisdictional: i.e., timely filing is an absolute prerequisite to the appellate court's power to entertain the appeal"].) (Original italics.)

The order denying leave to file a cross-complaint is also not appealable. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 496-497; Miller v. Stein (1956) 145 Cal.App.2d 381, 385-386 (Miller).) A challenge to such an order must be made by petitioning for a writ of mandate, or appealing the final judgment. (Marx v. McKinney (1943) 23 Cal.2d 439, 444; Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 901-902; Miller, at pp. 385-386.)

Karnazes concedes she "can find no judgment entered on the Orders appealed from" but contends both orders are "in essence final judgments and/or involve the merits or necessarily affect the order appealed from . . . and/or substantially affect [her] rights[.]" None of the authority Karnazes cites supports her argument.*fn2

DISPOSITION

The appeal is dismissed. Farmers is entitled to its costs on appeal.


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