Fiorini v. Phusion Products CA5

Filed 7/8/13 Fiorini v. Phusion Products CA5

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE FIFTH APPELLATE DISTRICT

BRETT A. FIORINI, F067046 Plaintiff and Appellant, (Fresno Super. Ct. No. 11CECG03802) v. ORDER PHUSION PROJECTS, LLC et al., ORDER MODIFYING OPINION Defendants and Respondents. (CHANGE IN JUDGMENT)

BY THE COURT:

It is ordered that the opinion filed herein on June 20, 2013, be modified as follows: The disposition on page 5 is deleted and the following inserted in its place: DISPOSITION “The appeal is dismissed as to defendants Donaghy and Phusion only.” This modification changes the judgment.

_____________________ Levy, A.P.J. WE CONCUR:

_____________________ Gomes, J.

_____________________ Franson, J.

Filed 6/20/13 Fiorini v. Phusion Projects CA5 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

BRETT A. FIORINI, F067046 Plaintiff and Appellant, (Fresno Super. Ct. No. 11CECG03802) v.

PHUSION PROJECTS, LLC et al., OPINION

Defendants and Respondents.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Kristi C. Kapetan, Judge. William L. Schmidt for Plaintiff and Appellant. No response for Defendants and Respondents.

-ooOoo-

______________________ *Before Levy, A.P.J., Gomes, J., and Franson, J.

STATEMENT OF THE CASE AND FACTS Plaintiff and appellant Brett A. Fiorini (Fiorini) sued defendants and respondents Donaghy Sales, LLC (Donaghy), Phusion Projects, LLC (Phusion), and City Brewing (City Brewing), after the death of Fiorini‟s son allegedly from ingesting Four Loko alcoholic/energy beverage. Following dismissal of Fiorini‟s complaint as to Donaghy on November 19, 2012, and Fiorini‟s complaint as to Phusion on November 27, 2012, notices of entry of judgment as to defendants Donaghy and Phusion were filed on December 3 and 5, 2012. Rather than appeal from these judgments, Fiorini waited until the court entered judgment on February 19, 2013, following the granting of City Brewing‟s motion for judgment on the pleadings. Fiorini filed the notice of appeal on April 2, 2013, within 60 days of judgment as to City Brewing, but more than 60 days of judgment as to Donaghy and Phusion. This court issued an order informing Fiorini that the court was considering dismissing the appeal on the ground that the notice of appeal filed by him seeking review of the judgments of dismissal as to Donaghy and Phusion was untimely. (See Cal. Rules of Court, rule 8.104.) Fiorini responded claiming the arguments asserted by Donaghy and City Brewing in their motion for judgment on the pleadings were interrelated, concerned the same legal issues and, that until the judgment was entered as to City Brewing, there had been no “one final judgment.” In appellant‟s words, “the orders and judgments as to Donaghy and Phusion should not be deemed to have amounted to appealable judgments as the lower court was actively, at the time, considering the arguments and legal issues which related to Donaghy and Phusion‟s demurrers. In considering City Brewing‟s motion for judgment on the pleadings, the lower court was free to, and very well could have, reversed itself as to its rulings relative to Donaghy and Phusion.”