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Friedman Professional Management Co., Inc v. Ko's Hb Medical Building

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 22, 2010

FRIEDMAN PROFESSIONAL MANAGEMENT CO., INC., PLAINTIFF AND APPELLANT,
v.
KO'S HB MEDICAL BUILDING, INC., ET AL., DEFENDANTS AND RESPONDENTS.

Super. Ct. No. 05CC11063 Appeal from an order of the Superior Court of Orange County, Gregory Munoz, Judge. Motion to dismiss appeal. Appeal dismissed.

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

Friedman Prof. Management v. Ko's HB Medical Building CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Plaintiff Friedman Professional Management Co., Inc. appeals from denial of their application for a writ of possession of real property they lease from defendants KO's HB Medical Building, Inc., Robert Ko, and Nancy Ko. The action arose based on a dispute between the parties over repairs to the premises plaintiff demanded and defendants allegedly failed to perform. Plaintiffs withheld rent, apparently asserting the right to do so under Civil Code section 1942, which allows a tenant, under specified conditions, to make repairs to untenantable premises and deduct the cost of the repair from rent. In response defendants served a three-day notice to pay rent or quit.

Plaintiff then filed this action, including causes of action for breach of lease and various torts and an application for a writ of possession under the claim and delivery statute, seeking an order to give it possession of the property. The court denied the application on the ground a writ of possession applies only to personal property, not real property, and was not the proper remedy to oppose an unlawful detainer action. After plaintiff appealed, defendants filed a motion to dismiss on the ground denial of a writ of possession is not an appealable order.

Not all orders are appealable, only those specified by statute, in this case Code of Civil Procedure section 904.1, subdivision (a). A denial of an application for a writ of possession is not among those specified. In fact the statute does not refer at all to writs of possession, although it does make appealable "an order discharging or refusing to discharge an attachment or granting a right to attach order." (Code Civ. Proc., § 904.1, subd. (a)(5).) Even if this were deemed to apply equally to writs of possession, here there was no discharge or refusal to discharge a writ. Defendants directed us to only two cases dealing with the question of an appeal from denial of a writ of attachment, both of which held there was no such right. (International Typographical Union etc. Pension Plan v. Ad Compositors, Inc. (1983) 142 Cal.App.3d 733, 735; San Diego Wholesale Credit Men's Assn. v. Superior Court (1973) 35 Cal.App.3d 458, 462.)

Relying on Stockton v. Rattner (1972) 22 Cal.App.3d 965 plaintiff argues its appeal falls under an exception allowing an appeal of an interlocutory order not specified in the statute where the ruling is, in effect, a final determination of property rights. But denial of the writ application was not a final determination of plaintiff's rights in its leasehold. The unlawful detainer action and plaintiff's underlying action were still pending.

Because there is no authority allowing for an appeal from denial of a writ of possession, we do not have jurisdiction to hear the case and the appeal will be dismissed. (Olson v. Cory (1983) 35 Cal.3d 390, 398.) Respondents are entitled to costs on appeal.

WE CONCUR:

MOORE, J.

ARONSON, J.

20101222

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