Shpiller v. Harry C's Redlands

Opinion

TIMLIN, J.

I.

Introduction

Bruce Shpiller (cross-complainant) purports to appeal from an order and “notice of ruling” announcing the dismissal, pursuant to Code of Civil Procedure sections 583.410 and 583.420,

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of both his cross-complaint against Harry C’s of Redlands (cross-defendant) and cross-defendant’s complaint against him. A “notice of ruling” is not an appealable judgment or order and the record on appeal contains no order of dismissal. (See §904.1.)

[1179]

For many years, this court, and most, if not all appellate courts, have repeatedly admonished appellants about the failure to make the preliminary and fundamental determination that what they are appealing from is, in fact, an appealable order or judgment. (This, of course, assumes the existence of an order or judgment.) Such admonishments being of little avail, California Rules of Court, rule 13 was amended, effective July 1, 1989, to require that every opening brief contain “either a statement that the appeal is from a judgment that finally disposes of all issues between the parties or a statement explaining why the order or nonfinal judgment is appealable.”

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It is our experience that, despite the amendment of rule 13 of the California Rules of Court, parties continue to “appeal” from nonexistent orders and judgments and/or from documents which are not even orders or judgments. A notice of ruling is not an order; an order is a document which contains a direction by the court that a party take or refrain from action, or that certain relief is granted or not granted (see

Passavanti

v.

Williams

(1990) 225 Cal.App.3d 1602, 1605 [275 Cal.Rptr. 887];

Bailey

v.