Wilson v. Select Portfolio Servicing, Inc. CA5

Filed 5/14/13 Wilson v. Select Portfolio Servicing, Inc. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

JAMES MATTHEW WILSON, F066272 Plaintiff and Appellant, (Super. Ct. No. VCU246096) v.

SELECT PORTFOLIO SERVICING, INC. et al., OPINION Defendants and Respondents.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Melinda M. Reed, Judge. James Matthew Wilson, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Kane, J.

STATEMENT OF THE CASE AND FACTS Appellant, James Wilson, filed a first amended complaint in the Tulare County Superior Court naming as defendants Select Portfolio Servicing, Inc., et al. The complaint sought to set aside a trustee sale, cancel the trustee’s deed, quiet title and alleged breach of written agreement, breach of implied covenant of good faith and fair dealing and intentional misrepresentation. Defendants filed a demurrer to the complaint. On August 6, 2012, the superior court sustained the demurrer without leave to amend. Following the denial of a motion for reconsideration, on November 15, 2012, appellant filed a notice of appeal from the order sustaining the demurrer without leave to amend. According to the Tulare County Superior Court docket, no final judgment has been entered. This court issued a briefing order granting appellant time to explain why this court should not dismiss his appeal for lack of a judgment or an appealable order. Appellant submitted a letter brief asking this court to treat the order as appealable since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment. We decline to do so. DISCUSSION An order sustaining a demurrer, whether with or without leave to amend, is not appealable; appeal is proper only after entry of a dismissal on such an order. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) The appeal in the above entitled action is dismissed on the ground appellant attempts to appeal from an order sustaining a demurrer without leave to amend. Such an order is not appealable and this court declines to deem the order to incorporate a judgment of dismissal. Appeal is proper only after entry of a judgment of dismissal. (Sisemore v. Master Financial, Inc., supra, 151 Cal.App.4th at p. 1396.)