Shokohi v. Wells Fargo Bank CA2/6

Filed 11/5/13 Shokohi v. Wells Fargo Bank CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

EMIL SHOKOHI, 2d Civil No. B247526 (Super. Ct. No. CV120199A) Plaintiff and Appellant, (San Luis Obispo County)

v.

WELLS FARGO BANK, et al.,

Defendants and Respondents.

Emil Shokohi, proceeding in propria persona, purports to appeal from an order denying his motion for reconsideration after the trial court granted a motion for judgment on the pleadings filed by Wells Fargo Bank, N.A., and Aubrey Kachmarik, respondents. "An order denying a motion for reconsideration . . . is not separately appealable." (Code Civ. Proc., § 1008, subd. (g).) "An order granting . . . a motion for judgment on the pleadings is [also] not an appealable order because it is not final, but only a preliminary or interlocutory order. The proper appeal is from an actual judgment. [Citations.]" (Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4.) The record contains no judgment; it contains only an order granting the motion for judgment on the pleadings and an order denying appellant's motion for reconsideration. The superior court clerk has informed us that there is no judgment in

the case file. The absence of a judgment is not fatal to the appeal. "The merits of the appeal have been fully briefed by both parties and no prejudice to [respondents] would result from considering the merits. Under these circumstances, '[t]o dismiss the appeal "merely to have a judgment formally entered below with a new appeal would be a useless waste of judicial and litigant time." [Citation.]' [Citation.] Accordingly, we order the trial court to enter, nunc pro tunc as of the date of the order [denying appellant's motion for reconsideration], a judgment dismissing the action . . . , and we then construe the notice of appeal to refer to such judgment. [Citation.]" (Donohue v. State of California (1986) 178 Cal.App.3d 795, 800.) We affirm. Factual and Procedural Background Appellant is 82 years old. On April 4, 2012, he filed a complaint consisting of seven causes of action. All of the causes of action arose out of an incident that occurred on April 7, 2010, when Wells Fargo employees detained appellant for over an hour after he had deposited a State of California check for $1,003.85. Appellant alleged that the employees had falsely accused him of forging the check. At a hearing conducted on November 14, 2012, the trial court granted respondents' motion for judgment on the pleadings. The court concluded that, except for the fourth cause of action for intentional infliction of emotional distress, all of the causes of action were barred by a one year statute of limitations. As to the fourth cause of action, the court ruled that appellant had failed to state a cause of action. In his motion for reconsideration, appellant argued that the statute of limitations was tolled because in March 2009 he had suffered a head injury that "resulted in [his] disorientation with respect to time." "As a direct result of [his] head injury . . . he could not remember . . . to file his action [within the] time limit required by law." In support of the motion, appellant attached medical records for the injury and declared that, "[o]n or about" November 10, 2012, he "was able to obtain" the records. At that time his brother "reminded" him of the head injury.