Integral Land Corp. v. Anderson

DOOLING, J. pro tem.

Two motions to dismiss this appeal were presented together, one by appellant to dismiss its appeal without prejudice on the ground that no appeal-able order or judgment has been entered in the trial court and the other by respondents for the failure of appellant to file its opening brief within the time required by the rules. Since we are satisfied that the ground of appellant’s motion is sound respondents ’ motion need not be further considered.

After the cause was at issue defendants moved the trial court, as recited in their notice of motion, “for an Order dis

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missing the complaint of plaintiff and that said defendants have judgment accordingly and for costs.” The notice stated as grounds of the motion “that said action has no merit” for a number of reasons specified, and further recited that “Said motion will be made under the provisions of section 437c of the Code of Civil Procedure and as otherwise provided by law.”

Section 437c, Code of Civil Procedure provides in certain enumerated classes of cases that “if it is claimed that there is no defense to the action or that the action has no merit, on motion of either party . . . the answer may he stricken out or the complaint may be dismissed and judgment may be entered. ... A judgment so entered is an appealable judgment as in other cases.” This is the so-called summary judgment procedure.

The transcript shows an order signed by the trial judge and filed with the clerk reading:

“The motion to dismiss heretofore argued and submitted is granted.”

Section 437c, Code of Civil Procedure, above quoted, contemplates two steps to be taken by the trial court in granting a defendant’s motion for summary judgment: 1. “the complaint may be dismissed” and 2. “judgment may be entered.”

Entry of judgment is made by entering the judgment in “the judgment book” kept by the clerk of the superior court. (Sec. 668, Code Civ. Proc.) It is conceded that no judgment has been entered in the judgment book in the manner provided in that section and only “a judgment so entered” is made appealable by section 437c. This has been expressly held in

Bank of America