California Court of Appeals, First District, Third Division
Ordered Filed Date January 14, 2014
San Francisco County Super. Ct. No. CGC-11-509290 Trial Judge: Hon. Harold E. Kahn
Counsel for Plaintiffs and Appellants: Michael Timothy Heath, and Howard Olsen of Law Office of Michael Heath
Counsel for Defendant and Respondent: Hannah C. Leung of Leung & Associates Christine A. Chorney of Casalina & Disston
ORDER MODIFYING OPINION
It is ordered that the opinion filed December 19, 2013, be modified as follows:
In the paragraph on page 6 immediately before the disposition, the following language is added after the sentence that reads “At some point a defendant is entitled to finality.”
This case is different from those where the merits have been resolved by an order granting a motion for summary judgment or sustaining a demurrer without leave to amend. In those situations, the defendant has acted to bring the case to a close and is properly required to take the additional step of obtaining a judgment or order of dismissal from which an appeal can be taken. (See Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531; Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 2.) The defendant should not have that burden when the plaintiff has chosen to end the case.
There is no change in the judgment.
Defendant and respondent Geen Hone Lee has moved to dismiss the appeal of plaintiffs and appellants Kaushik Dattani, et al. (Dattanis) on the ground that their notice of appeal was not timely filed. We conclude that an appealable judgment was created when Dattanis filed a request for dismissal without prejudice of all of their causes of action that remained after a grant of summary adjudication against them. Thus, the notice of appeal filed more than 180 days after the date of this judgment, was untimely. We therefore grant the motion to dismiss.
Dattanis filed a four-count complaint against respondent. By order dated June 27, 2012, the court granted respondent’s motion for summary adjudication of Dattanis’s first cause of action. On September 10, 2012, Dattanis filed a request for dismissal of all the remaining causes of action. According to counsel’s uncontested declaration in support of the motion to dismiss this appeal, she appeared on September 10, 2012, for trial of the second, third, and fourth causes of action. ...