Nevada Constructors, Inc. v. Mariposa Public Utility District

VAN DYKE, J.

Motion to dismiss appeal. Plaintiff and respondent brought action against the defendant and appellant to recover money alleged to be due on a construction contract. Defendant moved for a summary judgment which motion the court heard and denied. From the order denying the motion defendant appealed.

Code of Civil Procedure section 963 treats of appeals and,

inter alia,

provides that an appeal may be taken from a final judgment entered in an action or special proceeding commenced in a superior court. The section also

[817]

provides that appeals may be taken from certain orders therein designated. Orders denying motions for summary judgment are not included. Section 437c of the Code of Civil Procedure provides for summary judgments. By this section, and in certain designated proceedings, after answer filed, and if it be claimed that there is no defense to the action or that the action has no merit, the answer may be stricken or the complaint may be dismissed and judgment entered, if it be deemed by the court that there is present no triable issue of fact. The section specifically declares that “a

jiidgment

so entered is an appealable judgment as in other cases. ’ ’ (Italics added.) But this provision has no application to the appeal here taken. Obviously, where a motion to dismiss the complaint and enter judgment in favor of defendant is granted, or a like motion to strike the answer and enter judgment in favor of plaintiff is granted, and such an order in either case is followed by a formal judgment, a situation is presented which, without the specific appeal provision in section 437c of the Code of Civil Procedure, would have been governed by Code of Civil Procedure section 963,

supra,

declaring the right of appeal from a final judgment. The specific provision in section 437c of the Code of Civil Procedure that “a judgment so entered is an appealable judgment

as in other cases”

added nothing to the existing provision of section 963 of the Code of Civil Procedure; and it must be supposed this provision was inserted by the Legislature simply and solely to make certain what might otherwise have been thought to be uncertain. (Italics added.) 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 theréby 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 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.