Barnes v. Litton Systems, Inc.

OPINION

Plaintiff, Thomas J. Barnes, appeals from an order taxing costs after this court had reversed a summary judgment and remanded for trial. In an order to show cause, we raise the issue of whether an order taxing costs is appealable. The parties have briefed the issue. We conclude such an order is not appealable and dismiss the appeal.

On December 18, 1991, summary judgment was entered at the request of defendant, Litton Systems, Inc. An appeal was taken and on April 20, 1993, this court reversed the summary judgment in an unpublished opinion. (Barnes v. Litton Systems, Inc. (Apr. 20, 1993) B064749.) Upon remand, plaintiff filed a cost memorandum. A motion to tax costs was granted in part. On October 20, 1993, plaintiff filed the following notice of appeal: "NOTICE IS HEREBY GIVEN THAT DEFENDANT THOMAS BARNES, APPEALS TO THE COURT OF APPEALS FOR THE SECOND DISTRICT, the Minute Order and Judgment entered on October 12, 1993 in favor of plaintiff and defendant in this case. [¶] This is a partial appeal, appealing only the taxing of plaintiff's preparation of Record on Appeal to this Court." On June 17, 1994, this court issued an order to show cause requesting briefing concerning possible dismissal of the appeal. The parties have filed responses.

(1) We agree with defendant that an order taxing costs is not separately appealable. The order under review is not described specifically in Code of Civil Procedure section 904.11 Subject to constitutional limitations, there is no federal or state constitutional right to appeal. (Lindsey v. Normet (1972) 405 U.S. 56, 77 [31 L.Ed.2d 36, 52-53, 92 S.Ct. 862];Trede v. Superior *Page 683 Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) Further, the California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976)18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [164 Cal.Rptr. 1, 609 P.2d 468] ["a judgment or order is not appealable unless expressly made so by statute"]; Skaff v.Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65,435 P.2d 825] [". . . a party possesses no right of appeal except as provided by statute"]; People v. Keener (1961) 55 Cal.2d 714,720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] [". . . an order is not appealable unless declared to be so by the Constitution or by statute"];People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962)58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641] [". . . the right of appeal is statutory and a judgment . . . is not appealable unless it is expressly made so by statute"]; ModernBarber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728 [192 P.2d 916] [". . . the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable"]; Trede v. SuperiorCourt, supra, 21 Cal.2d at p. 634 [there being no constitutional right of appeal; ". . . the appellate procedure is entirely statutory and subject to complete legislative control"];Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384,386 [264 P. 488] ["right of appeal is statutory and may be granted or withheld"].) Accordingly, if the order under review is appealable at all, it must be pursuant to section 904.1, subdivision (a)(2) which states in pertinent part: "An appeal may be taken from a superior court in the following cases: [¶] . . . [¶] (2) From an order made after a judgment made appealable by paragraph (1)."