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Berghoff v. Gavrity7/31/2002
or to BAFJ.
In February 2000, Revere and Gavrity filed a demurrer again based on the doctrine of res judicata to three of the four causes of action (excluding the intentional misrepresentation claim against Gavrity). In March, the Honorable Mary Ann Murphy sustained the demurrer without leave to amend on all causes of action "except the second cause of action against defendant Donald Gavrity." According to the June 13, 2001, minute order, the Honorable Richard B. Wolfe ordered dismissal of all but the second cause of action against Gavrity, based on Judge Murphy's order. Berghoff, Rosenthal, and AFJ (collectively "BAFJ") appeal from the June 13, 2001, order of dismissal.
DISCUSSION
I.
Before addressing the merits of BAFJ's claim, we first resolve defendants' assertion that the order of dismissal as to Gavrity is not a final judgment for purposes of appeal and should be dismissed. BAFJ's first cause of action for intentional misrepresentation against Gavrity remains pending in the trial court. By stipulation of the parties, the trial court ordered trial court proceedings stayed pending the outcome on appeal. Defendants advise us they believe the trial court erred in overruling Gavrity's demurrer to the intentional misrepresentation and intend to appeal that ruling once a final judgment is entered. Gavrity would, of course, also be entitled to appeal from a disposition adverse to him of the intentional misrepresentation cause of action.
Code of Civil Procedure section 904.1 effectively codifies the common law one final judgment rule -- that an appeal lies only from a final judgment that terminates trial court proceedings by completely disposing of the matter in controversy. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) The order of dismissal before us does not completely dispose of the matter in controversy. The status of this proceeding also triggers two other policies underlying the general rule. It will generate at least one and perhaps two more appeals. The trial court stay now delays trial court proceedings. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967.) Thus, this matter is in the nature of an interlocutory appeal, a context in which the one final judgment rule is strictly applied. (Id. at p. 968.) Because the intentional misrepresentation claim remains pending in the trial court and because Gavrity intends to appeal the trial court's overruling his demurrer, we apply the rule and dismiss that aspect of the appeal.
II.
BAFJ claims its tort claims in this lawsuit are not barred by the federal district court's ruling in Berghoff I. We conclude otherwise.
"In examining the sufficiency of complaint, ` e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citations.] ` e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citation.]" (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.)
Invoking the primary right theory, BAFJ says the current la
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