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Allabach v. Santa Clara County Fair Assn.3/28/1996
PREMO, Acting P. J.
Anthony Allabach was injured by a defective barrier while he was observing a destruction derby automobile race at the Santa Clara County Fairgrounds. He and Carol Allabach then sued Santa Clara County Fair Association, Inc., Cars, Inc., California Automobile Racing Speedways, Inc., Klauers, Inc., and Santa Clara County for negligence and strict liability. The trial court granted defendants' motion for summary judgment on the basis that Anthony expressly assumed the risk of injury via a written release of liability. Plaintiffs appealed from the order. The trial court later rendered a judgment for defendants. We exercise our discretion to treat plaintiff's appeal as filed immediately after the judgment and affirm the judgment.
APPEALABILITY
In California, the right to appeal is wholly statutory. ( Jordan v. Malone (1992) 5 Cal. App. 4th 18, 21 [6 Cal. Rptr. 2d 454].) In order to exercise that right an appellant must take an appeal from a statutorily declared appealable judgment or order (Code Civ. Proc., § 904.1) and must be aggrieved by that judgment or order (Code Civ. Proc., § 902).
An order granting a motion for summary judgment is not among the types of orders specified in Code of Civil Procedure section 904.1. In short, " n order granting a motion for summary judgment is a nonappealable preliminary order." ( Avila v. Standard Oil Co. (1985) 167 Cal. App. 3d 441, 445 [213 Cal. Rptr. 314].)
"For many years, this court, and most, if not all appellate courts, have repeatedly admonished appellants about the failure to make the preliminary and fundamental determination that what they are appealing from is, in fact, an appealable order or judgment. (This, of course, assumes the existence of an order or judgment.) Such admonishments being of little avail, California Rules of Court, rule 13 was amended, effective July 1, 1989, to require that every opening brief contain 'either a statement that the appeal is from a judgment that finally disposes of all issues between the parties or a statement explaining why the order or nonfinal judgment is appealable.' It is our experience that, despite the amendment of rule 13 of the California Rules of Court, parties continue to 'appeal' from nonexistent orders and judgments and/or from documents which are not even orders or judgments." ( Shpiller v. Harry C's Redlands (1993) 13 Cal. App. 4th 1177, 1179 [16 Cal. Rptr. 2d 814], fn. omitted.)
California Rules of Court, rule 2(c), provides, in relevant part: "A notice of appeal filed prior to rendition of the judgment, but after the Judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment."
Plaintiffs make no argument that good cause exists for invocation of California Rules of Court, rule 2(c), presumably because they failed to make the preliminary and fundamental determination that what they were appealing from was, in fact, appealable. But since the parties have briefed the merits of the case and defendants have failed to attack plaintiffs' notice of appeal, we invoke rule 2(c) in the interests of judicial economy.
SCOPE OF REVIEW
" 'An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. [Citations.] On review of a summary judgment in favor of the defendant, we review the record de novo to determine whether the defendant has conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypot
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