Velasco v. Commercial Building Maintenance Co.

Opinion

DALSIMER, J.

Pedro Velasco and his son, Pedro Velasco, Jr., sustained personal injuries when a bottle exploded. In their first amended complaint plaintiffs alleged that they took the remains of the bottle to an attorney who proceeded to place the bottle fragments in a paper bag which he left on top of his desk. Plaintiffs alleged that the agents of the owner of the building in which plaintiffs’ attorney worked “negligently . . . destroyed or disposed of the aforesaid remnants of the exploded bottle” while cleaning the office of plaintiffs’ attorney. Defendant Commercial Building Maintenance Company was served as a Doe defendant and filed a demurrer to the first amended complaint.

It was neither alleged that the paper bag was in any way marked to designate that its contents pertained to a case nor is it here contended that plaintiffs could have so alleged had leave to amend been granted. Further, the record does not reflect that plaintiffs sought leave to file a second amended complaint to so state.

Plaintiffs purport to appeal from the order sustaining the demurrer of defendant Commercial Building Maintenance Company without leave to amend. While an order sustaining a demurrer without leave to amend is nonappealable

(Taylor

v.

State Personnel Bd.

(1980) 101 Cal.App.3d 498, 501, fn. 1 [161 Cal.Rptr. 677]), “‘[w]hen a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.’ [Citations.]”

(Beazell

v.

Schrader

(1963) 59 Cal.2d 577, 579-580 [30 Cal.Rptr. 534, 381 P.2d 390].) Where no judgment has been entered, the appellate court may, and in the instant case we do, amend the nonappealable order to make it an appealable order of dismissal and construe the notice of appeal as applying to the order of dismissal.

(Taylor

v.

State Personnel Bd., supra,

101 Cal.App.3d 498, 501, fn. 1.)

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