Stanton v. Andrews

LILLIE, J.

Motion to dismiss appeal.

Plaintiffs, respondents herein, filed a complaint for personal injuries and property damage arising out of an automobile accident occurring February 5,1958. Defendants filed a cross-complaint for damages and thereafter a notice of motion for summary judgment. The motion was heard and denied, and from the order denying the motion, defendants and cross-

[270]

complainants appeal. Respondents have filed this motion to dismiss the appeal on the ground that no appeal lies from an order denying a motion for summary judgment.

Appellants, in support of their appeal, rely upon section 437e, Code of Civil Procedure, and contend that the trial court abused its discretion in denying the motion because there exists no triable issue.

Although under section 437c, Code of Civil Procedure, a summary judgment may be entered after a complaint is dismissed or an answer is stricken, and provides that “(a) judgment so entered is an appealable judgment as in other cases,” such latter provision has no application to an order denying a motion for summary judgment. It declares only the right of appeal from a final judgment, in accord with the specific provision in section 963, Code of Civil Procedure, that an appeal may be taken from any final judgment entered in an action or special proceeding commenced in a superior court. In

Nevada Constructors, Inc.

v.

Mariposa etc. Dist.,

114 Cal.App.2d 816 [251 P.2d 53], the first California case to decide the issue raised herein, the court stated at page

817: “A

judgment entered when a motion to strike the answer or dismiss the complaint is granted has all the qualities of a final judgment for thereby the proceeding is brought to an end; and except as it may be affected by appellate review the case is concluded and no further proceedings may be had. But if a motion to strike the answer or dismiss the complaint may be denied, then the case goes forward to trial and ultimate judgment on the merits; such an order of denial possesses none of the attributes of a final judgment, nor is it one of the orders expressly made appealable by Code of Civil Procedure, section 963.”