Munoz v. Florentine Gardens

Opinion

JOHNSON, J. --

Plaintiffs purport to appeal from an order dismissing their case for failure to prosecute or as a sanction for failing to appear at the court-scheduled status conference. Such an order is not a final judgment and is not an appealable order. (Code Civ. Proc., § SSld;

1

Rios

v.

Torvald Klaveness

(1969) 2 Cal.App.3d 1077 [83 Cal.Rptr. 150];

Graski

v.

Clothier

(1969) 273 Cal.App.2d 605 [78 Cal.Rptr. 447].)

At the request of the justices of this court, the clerk communicated with counsel to request letter briefs on the issues of whether there was a written order signed by the trial court dismissing the action and, if not, whether this appeal should be dismissed.

In response, both parties acknowledged the minute order in this case was not an appealable judgment. Counsel also confirmed there was no final judgment in the case because there was no written order of dismissal signed by the trial court. Despite notification of the defect plaintiffs still neglected to secure the order of dismissal. Had plaintiffs done so, and had they requested this court to take judicial notice of the signed order of dismissal,

[1732]

we could have taken judicial notice of the after-filed judgment and deemed the notice of appeal to be from that judgment and order and thereby acquired jurisdiction of the appeal. (Evid. Code, §§ 452, 459;

2

see, e.g.,

Estafe of Silver

(1982) 133 Cal.App.3d 937 [184 Cal.Rptr. 280];

Minor