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Scott v. Romans6/22/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Noel Phillipe Scott sued defendants Matthew L. Romans, M.D., Donald R. Kellogg, M.D., and Outpatient Plastic Surgery Center for medical malpractice and related causes of action. The trial court sustained a demurrer to the second amended complaint without leave to amend. Plaintiff appeals from the order and contends that he stated causes of action. He alternatively argues that the trial court abused its discretion by denying leave to amend because the complaint could be amended to state causes of action. We treat the notice of appeal as filed immediately after the judgment. We affirm the judgment.
Appealability
Appellate jurisdiction in California is conferred by article VI, section 11, of the Constitution, but controlled by statute. " party possesses no right of appeal except as provided by statute." (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78.) In order to exercise that right, an appellant must take an appeal from a statutorily declared appealable judgment or order. (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) The most common types of appealable judgments or orders are final judgments and orders made after a final judgment. (Code Civ. Proc., ยง 904.1, subds. (a), (b).)
An appeal is taken from superior court by filing with the clerk of that court a notice of appeal. (Cal. Rules of Court, rule 1(a)(1).) "The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Id., rule 1(a)(2).) The notice of appeal limits the power of the reviewing court. (Smith v. Halstead (1948) 88 Cal.App.2d 638, 640.)
Plaintiff filed his notice of appeal on August 16, 2004. The notice appeals "from a ruling . . . on August 3, 2004." This ruling is the trial court's order sustaining Romans's demurrer. The trial court entered judgment dismissing the action on August 18, 2004.
"An order sustaining a demurrer is interlocutory and thus not appealable. Any appeal must be taken from the subsequently entered judgment of dismissal." (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780.)
Under certain circumstances, appellate courts will salvage appeals like this one and construe an order sustaining a demurrer as the equivalent of a judgment or order of dismissal. California Rules of Court, rule 2(e)(2), provides: "The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." Factors justifying such consideration have been the interests of justice, the prevention of delay, and that the trial judge clearly contemplated that a formal judgment was to be prepared, signed, and filed. (Reyna v. City and County of San Francisco (1977) 69 Cal.App.3d 876, 879.) Other factors are that a judgment was actually entered, there is no doubt as to the ruling the appellant seeks to have reviewed, and the respondent could not possibly have been misled. (Forsyth v. Jones, supra, 57 Cal.App.4th at p. 780.)
Here, judgment was actually entered and Romans, though noting the defect, resists the appeal on the merits and asks us to so decide it. We therefore treat plaintiff's notice of appeal as filed immediately after entry of judgment.
Scope of Review<
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