Cobb v. University of Southern California

Opinion

TURNER, P. J. I. Introduction

Defendant, the University of Southern California, has moved to dismiss the appeal of plaintiff, Marvin Cobb. Plaintiff tried two separate claims to a jury. The first cause of action tried to the jury was for contract breach. The second cause of action tried to the jury was for race discrimination. On June 6, 1994, the jury returned a verdict in favor of plaintiff on his contract breach claim. The jury awarded plaintiff $1.1 million for economic losses. Also, the jury returned a verdict of an additional $1.1 million in noneconomic damages on plaintiff’s contract breach cause of action. The jury was unable to reach a verdict on plaintiff’s race discrimination cause of action.

The race discrimination claim was set for retrial. The results of the post-judgment motions are somewhat confusing. However, based on the record submitted by the parties pursuant to California Rules of Court, rule 42(a), the [801]following constitutes the present litigation state of affairs. The trial court granted what amounts to a motion for judgment notwithstanding the verdict as to all of plaintiff’s non-economic damages allegedly arising from his contract breach cause of action. Further, the court has ordered a new trial as to the remaining contract breach cause of action issues. This would amount to a retrial on the issues of liability and economic damages.1 As previously noted, plaintiff’s race discrimination cause of action was also to be retried.

On September 9, 1994, plaintiff filed a notice of appeal from the orders granting the new trial and the partial judgment notwithstanding the verdict motions. Defendant has moved to dismiss the appeal because there are remaining claims to be tried in superior court based upon the decision of our Supreme Court in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 [29 Cal.Rptr.2d 804, 872 P.2d 143]. As to the appeal from the order granting a new trial, the dismissal motion is denied. However, the motion to dismiss the appeal as to the order we construe to be one granting the partial judgment notwithstanding the verdict is granted.

II. Discussion

Subject to certain narrow constitutional limitations, there is no right to appeal. (Lindsey v. Normet (1972) 405 U.S. 56, 77 [31 L.Ed.2d 36, 52-53, 92 S.Ct. 862]; Trede v. Superior Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) The California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [164 Cal.Rptr. 1, 609 P.2d 468] [“. . . a judgment or order is not appealable unless expressly made so by statute”]; Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65, 435 P.2d 825] [“. . . a party possesses no right of appeal except as provided by statute”]; People v. Keener (1961) 55 Cal.2d 714, 720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] [“. . . an order is not appealable unless declared to be so by the Constitution or by statute”]; People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647