Tianen-Bennett v. Super. Ct. CA1/1

Filed 11/19/14 Tianen-Bennett v. Super. Ct. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

HELENA TIANEN-BENNETT, Petitioner, v. A143191 THE SUPERIOR COURT OF ALAMEDA COUNTY, (Alameda County Super. Ct. No. RG11571525) Respondent; CITY OF BERKELEY et al., Real Parties in Interest.

INTRODUCTION Petitioner Helena Tianen-Bennett is the plaintiff in an underlying trip-and-fall suit in Alameda County Superior Court. Petitioner filed a timely petition for writ of mandate seeking reversal of the trial court’s order denying her request to enter summary judgment so she could file an appeal based on the court’s earlier orders granting summary judgment in favor of defendants and real parties in interest City of Berkeley (City) and KRGW Fujimoto, LLC (Fujimoto). We shall grant the petition. BACKGROUND On September 5, 2012, Judge George Hernandez, Jr., issued an amended order granting City’s motion for summary judgment under the trivial defect doctrine, ruling as a matter of law the area of sidewalk in dispute did not constitute a dangerous condition.1

1 The merits of the ruling are not at issue here.

1

The amended order granting summary judgment concludes with the following language: “Defendant City of Berkeley is DISMISSED from this action. [¶] IT IS SO ORDERED.” On the same date, Judge Hernandez issued a similar amended order granting summary judgment in favor of Fujimoto, owner of the property adjacent to the allegedly defective sidewalk. Plaintiff filed a motion for new trial and for reconsideration, which defendants opposed. On November 20, 2012, Judge Hernandez issued an order stating: “The Motion of Plaintiff for Reconsideration of the Court’s Order granting Summary Judgment is DENIED.” Approximately 18 months later, on June 4, 2014, Judge Stephen Kaus issued a case management order scheduling a further case management conference for July 15, 2014. In response, plaintiff filed a motion requesting the court enter “Judgment on the granted Motion for Summary Judgment, because such Judgment is necessary for appeal, and Defendants never submitted it.” Defendants opposed the motion, contending that the time to appeal had expired because the order granting summary judgment was a “written order of dismissal” and therefore constituted a final appealable judgment. On August 26, 2014, the superior court clerk filed a “Notice of Entry of Judgment or Order” (Judicial Council Forms, form CIV-130) stating a “judgment, decree, or order was entered in this action on . . . 8/07/14” and attached a copy of the order. The attached order setting forth Judge Kaus’s ruling states: “IT IS HEREBY ORDERED THAT: [¶] On the motion of Plaintiff . . . to enter summary judgment, the court orders as follows: [¶] The motion is DENIED. The court’s September 5, 2012 order dismissed Defendants [City] and [Fujimoto] from the action. An order of dismissal is a judgment for all purposes. (Code Civ. Proc., section 581, subd. (d).) A judgment is an appealable order. (Code Civ. Proc., section 904.1, subd. (a)(1); California Rules of Court, rule 8.104(e).) The time to appeal a judgment has long since expired. (California Rules of Court, rule 8.104(a) [60 days from service of notice of entry of order or 180 days from entry of order of dismissal if no notice].) There is no cause to enter a second judgment. [¶] Plaintiff’s