Dagning v. Nursetech CA3

Filed 12/17/14 Dagning v. Nursetech CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

JOSEPH DAGNINO et al., C071927

Plaintiffs and Respondents, (Super. Ct. No. 34-2010- 00081391-CU-PO-GDS) v.

NURSETECH, INC.,

Defendant;

SECURITAS, INC.,

Claimant and Appellant.

This case presents an issue of the appealability of the underlying ruling. Since we conclude the ruling is not appealable, we shall dismiss. FACTUAL AND PROCEDURAL BACKGROUND In this personal injury action, plaintiffs Joseph and Marcella Dagnino and defendant Nursetech, Inc., entered into a settlement prior to trial, and plaintiffs

1

voluntarily dismissed the action with prejudice. Securitas, Inc., (Securitas) was not a party to the action, but had filed a notice of lien against any judgment or settlement based on sums it had paid as workers’ compensation benefits to Joseph Dagnino. Securitas had also attempted to file a complaint in intervention in the action, but the trial court denied the motion as untimely, the motion having been filed one year eight months after the complaint was filed and the hearing on the motion occurring only 10 days before the trial was scheduled to commence. On May 1, 2012, after the notice of settlement of the case was filed on April 13, 2012, Securitas filed a motion to determine the lien amount to be applied to the settlement. The hearing on the motion was set for June 22, 2012. On May 11, 2012, plaintiffs filed a request for dismissal of the action with prejudice, which was entered by the clerk the same day. On June 25, 2012, the trial court heard Sercuritas’s motion, and dropped the motion for lack of jurisdiction. It is from this minute order dropping the motion that Securitas appeals. DISCUSSION Plaintiffs contend the appeal must be dismissed because the order appealed from was not appealable. We agree. It is the appellant’s burden to explain why the order appealed from is appealable. (Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.) Securitas’s explanation of appealability, in its entirety, is as follows: “This is an appeal from a final order made appealable by Code of Civil Procedure section 904.1 [subdivision] (a)(1).” Code of Civil Procedure section 904.1, subdivision (a)(1) provides in full: “(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222.”