Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC173487, Peter D. Lichtman, Judge. Dismissed.
Irell & Manella, Gregory R. Smith, Laura A. Seigle, Mark Paluch; Phillips & Cohen and Eric R. Havian for Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Christopher M. Ames, Senior Assistant Attorney General, and Frederick W. Acker, Deputy Attorney General, as Amicus Curiae for Plaintiffs and Appellants.
Beck, DeCorso, Daly, Kreindler & Harris, Bryan D. Daly, Charles L. Kreindler, Barbara E. Taylor; Stanzler, Funderburk & Castellon and Ruben A. Castellon for Defendant and Respondent James Jones Company.
Weston, Benshoof, Rochefort, Rubalcava & MacCuish, David S. MacCuish, Kurt Osenbaugh, Andrew M. Gilford and Lisa M. Gilford for Defendant and Respondent Watts Industries, Inc.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Qui tam plaintiff Nora Armenta (Armenta) brought this action on behalf of numerous governmental entities, alleging violation of the California False Claims Act (CFCA, Gov. Code, § 12650 et seq.) by defendants James Jones Company (Jones), Mueller Co. (Mueller), Tyco International (US), Inc. (Tyco), and Watts Industries, Inc. (Watts). The action arises out of defendants’ provision of pipes and other waterworks products to the governmental entities. The original complaint was filed in 1997.
As we explained in City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 797, footnote 1, “‘Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means “who pursues this action on our Lord the King’s behalf as well as his own.”’ [Citation.]”
The case has been before this court numerous times. City of Pomona v. Superior Court, supra, 89 Cal.App.4th 793, involved a petition for writ of mandate by the City of Pomona and Armenta, seeking to reinstate causes of action for violation of the CFCA against defendants Jones, Mueller, Tyco and Watts. We granted the petition, holding that the complaint adequately alleged violation of the CFCA. (Id. at pp. 797, 805.)
Armenta v. Superior Court (2002) 101 Cal.App.4th 525 involved a petition for a writ of mandate by Armenta, East Bay Municipal Utility District, City and County of San Francisco and City of Santa Monica challenging a discovery order. We granted the petition. (Id. at pp. 528, 536.)
We also denied four petitions for writs of mandate in 2002 and 2004: Armenta v. Superior Court (Aug. 9, 2002, B160136), City of San Diego v. Superior Court (Apr. 2, 2004, B173953), Armenta v. Superior Court (May 28, 2004, B173958), and Armenta v. Superior Court (Dec. 21, 2004, B179153).
In Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636 (Mueller), we held that the trial court abused its discretion in imposing certain conditions on its grant of leave to file a second amended complaint. We also reversed a summary judgment in favor of Mueller and Tyco. (Id. at pp. 639, 645, 649.)
The notice of appeal in Mueller was filed on May 7, 2004. While the appeal was pending, on July 14, 2005, the trial court filed the order at issue in the instant appeal. This order summarily adjudicated and dismissed Armenta’s claims on behalf of real parties in interest Contra Costa Water District, City of Corona, City of Santa Cruz and City of Vallejo.
Armenta filed a petition for a writ of mandate on July 27, 2005, challenging the July 14 order as well as an earlier order. On August 11, 2005, we denied the petition, stating that Armenta “has an adequate remedy on appeal.” On August 17, 2005, Armenta filed the notice of appeal in the instant case.
The Mueller opinion was filed on August 30, 2006. Mueller and Tyco filed a petition for review on October 11, 2006. Before the petition for review was filed, on October 3, 2006, Jones and Watts moved to dismiss the instant appeal on the ground the orders from which it was taken are not appealable. Armenta opposed the motion, in part based on the fact that Jones and Watts were relying on Mueller, in which the petition for review was pending. Armenta also requested that, if the orders are not appealable, we treat the appeal as a renewed writ petition. Thereafter, on November 29, 2006, the Supreme Court denied review in Mueller.
In the interim, a petition for rehearing was filed and we modified our opinion.
We conclude that the appeal properly is dismissed, in that the orders are not appealable. We also deny Armenta’s request to treat the appeal as a writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
As in Mueller, “[t]o provide context, we take [some of] our [background] ‘facts’ from the allegations of the first amended complaint, which we addressed in City of Pomona v. Superior Court, supra, 89 Cal.App.4th 793, as well as from those of the second amended complaint[, which we addressed in Mueller].” (Mueller, supra, 142 Cal.App.4th at p. 639, fn. 3.) To these we add facts relevant to the issues before us on this appeal.
Jones and its parent companies, Mueller, Tyco and Watts, “‘manufacture and supply pipes and other water distribution parts.’ They sell these parts ‘directly to municipalities for carrying drinking water or to contractors for eventual use in municipal water systems.’” (City of Pomona v. Superior Court, supra, 89 Cal.App.4th at p. 797.) Each of the governmental entities named in the second amended complaint requires that vendors provide water system components fabricated of bronze which conform to or exceed the standards of the American Water Works Association (AWWA). (Second Amended Complaint, pars. 14, 70.)
“Jones’s catalogues and sales literature represented that all of the pipes, valves, ball valves, stops and fittings which it offered for sale did conform to AWWA standards. ‘AWWA Standard C-800-89’ requires that all bronze parts coming into contact with drinking water ‘contain 85 percent copper and 5 percent each of tin, lead and zinc,’ a mix commonly known as 85 metal. (City of Pomona v. Superior Court, supra, 89 Cal.App.4th at pp. 797-798.) Those parts include valves, which control the flow of water from the main water line to a residence; balls, the component of a valve which either blocks or permits the flow of water through the valve; saddles; and compression nuts. (Second Amended Complaint, par. 14.) ‘AWWA imposes this standard “[b]ecause of the potential for corrosion of high-zinc brasses.”’ (City of Pomona, supra, at p. 797.)
“Jones’s catalogues and sales literature emphasize the value of 85 metal in resisting corrosion. They represent that ‘Jones’s products are made of 85 metal “for long, long, life,” “to insure long life in the harshest soils,” or “for corrosion protection.”’ (City of Pomona v. Superior Court, supra, 89 Cal.App.4th at p. 798.) ‘These statements are patently false.’ (Second amended complaint, par. 15.)
“Jones circulated to all potential customers, including governmental entities, and to distributors through whom Jones sold its products, catalogues offering its parts for sale. It did so with the expectation that Jones’s potential customers would refer to, and rely upon, the catalogues when they ordered parts to be used in water distribution. (City of Pomona v. Superior Court, supra, 89 Cal.App.4th at p. 798.) It is Armenta’s information and belief that during the 10 years preceding 1998, Jones disseminated its false catalogue statements to each California political subdivision which purchased, directly or through distributors, Jones parts coming into contact with drinking water. (Second amended complaint, pars. 6, 65.)
“In August 1991, Jones’s president instructed Armenta, who then was Jones’s purchasing manager, to purchase ‘raw metal with less copper and more lead or zinc. Jones manufactured and sold pipes and valves using 81 metal [comprised of 81 percent copper, 9 percent zinc, 3 percent tin and 7 percent lead] rather than 85 metal as it continued to represent in its catalogues and sales materials that the pipes and other parts either complied with AWWA standards or were made of 85 metal. Jones also manufactured or purchased from suppliers certain sizes of balls for valves made from 360 metal [comprised of 60 percent copper and 40 percent zinc, which corrodes approximately five times faster than 85 metal] while continuing to represent that these parts were made of 85 metal.’ (City of Pomona v. Superior Court, supra, 89 Cal.App.4th at pp. 798, 799; second amended complaint, pars. 20, 22, 23.)
“Armenta expressed concerns about the balls’ zinc content repeatedly. On each occasion, however, Jones’ employees told her it was not a matter about which she should be concerned. (Second amended complaint, par. 21.)
“Jones shipped to California customers valve balls that were made of 81 metal. It falsely certified to its customers that these valve balls were made of 85 metal. Jones shipped many other 81 metal parts to California governmental entities, knowing that AWWA standards required them to be made of 85 metal, and representing that they were. These parts included thousands of saddles. Each shipment invoice consequently presented a false claim. (Second amended complaint, pars. 31-43.)
“Jones acquires the many parts comprising the finished products it sells to its waterworks customers in two ways: through manufacture or through purchase. ‘It purchased parts from its suppliers knowing that those parts were made of substandard metal, and it manufactured parts at its foundry from substandard metal.’ Jones then sold those parts to governmental entities while falsely certifying that they were made of conforming metal. (Second amended complaint, pars. 16, 44-55.)” (Mueller, supra, 142 Cal.App.4th at pp. 639-641.)
Armenta then filed this action. Her first amended complaint listed 34 cities and water districts as real parties in interest. The gravamen of the first amended complaint was that defendants violated the CFCA by making false claims for which real parties paid them “money that they otherwise would not have paid.”
The trial court then filed Case Management Order No. 1, designating the case to be complex litigation and allowing Armenta a limited period of time in which to move to file a second amended complaint or otherwise add parties to the action. Armenta moved for leave to file a second amended complaint, adding 130 new real parties in interest. Again, the allegations were that defendants violated the CFCA in that they made false claims for which real parties made monetary payments that they otherwise would not have made.
Armenta proposed that trial of the case be divided into phases. The Phase I cities would be the five largest purchasers of defendants’ products. There would be a trial of both liability and damages issues as to these cities. Thereafter, the trial court would determine what issues remained to be resolved as to the other real parties—the Phase II cities—and conduct a trial or series of “mini-trials” to resolve those issues. The trial court agreed to this procedure.
Following our decision in City of Pomona v. Superior Court, supra, 89 Cal.App.4th 793, defendants settled the action as to the Phase I cities. The trial court approved the settlement. The court then gave defendants the opportunity to select five cities for the Phase II trial. Defendants selected the Contra Costa Water District, Corona, Santa Ana, Santa Cruz and Vallejo.
Defendants settled with Santa Ana, leaving only the four Phase II cities as subjects of this appeal.
In the course of discovery, the parties learned that the Phase II cities did not purchase defendants’ products. Rather, they acquired defendants’ products when they permitted the development of, and accepted, new subdivisions containing water distribution systems in which the developers had installed defendants’ products.
Jones and Watts moved for summary adjudication of Armenta’s claims as to the Phase II cities with respect to parts purchased by private parties and later transferred to the cities. The basis of the motion was that the CFCA applies only to false claims submitted to the governmental entities, not to claims submitted to private parties. They also sought an order excluding any evidence at trial of sales to private parties.
Armenta moved for leave to file a third amended complaint alleging that real parties, unaware of defendants’ false representations, “paid money, transferred property, and provided services that they otherwise would not have paid, transferred, or provided.”
Jones and Watts then moved for summary judgment, or in the alternative summary adjudication, of Armenta’s claims as to the Phase II cities. The motion for summary judgment was made on the same basis as the previous motion for summary adjudication—that there was no evidence of any false claims submitted to the Phase II cities. The alternative motion for summary adjudication was made on the ground Armenta could not prove falsity of any of the invoices for Jones’s parts submitted to the Phase II cities or damages resulting from the provision of substandard parts or parts that were not as represented on the invoices.
On October 4, 2004, the trial court granted the initial motion for summary adjudication by Jones and Watts and denied Armenta’s motion to file a third amended complaint. The trial court found it “undisputed that a number of waterworks parts supplied by Jones . . . were installed in each of the Cities by privately owned real estate developers . . . as part of the public improvements that they are required to construct when building a subdivision or other residential development project. . . . The Cities admit that they did not pay for the waterworks parts purchased and installed by the developers and that the developers paid the full cost of these parts. . . .”
The trial court observed that the CFCA “imposes liability only where a ‘claim’ has been made to the state or a political subdivision.” It was enacted “‘to protect the public fisc.”’” (Laraway v. Sutro & Co. (2002) 96 Cal.App.4th 266, 274.) Armenta and the Phase II cities “do not have a CFCA action with respect to any Jones waterworks parts paid for and installed by developers in the Cities. . . . Since the Cities did not make any payment in response to a ‘false claim,’ the installation of Jones waterworks parts by developers did not have an impact on the public fisc. Accordingly, [Armenta] and the Cities do not have a cognizable CFCA action under the Second Amended Complaint with respect to any of the Jones parts installed by developers.”
The trial court also denied Armenta’s motion for leave to file a third amended complaint. It explained that in 2000, Case Management Order No. 1 gave Armenta a limited period of time in which to file any amended complaint. Since that time, Armenta had filed a second amended complaint, the Phase I cities had settled, and discovery had been conducted. Additionally, the trial court had denied a motion for three of the Phase II cities to intervene in the action, in that “[d]efendants were entitled to finality as to the identity of plaintiffs and the nature and extent of the claims asserted in this action.”
Armenta’s proposed third amended complaint “would, if allowed, raise a great number of factual issues which would be subject to discovery.” Defendants therefore would face substantial prejudice if Armenta were allowed to file the third amended complaint. The court additionally found that Armenta unreasonably delayed in investigating and discovering the facts on which the third amended complaint was based and, in any event, the third amended complaint failed to state a cause of action under the CFCA with respect to Jones products purchased and installed by developers. For these reasons, the court would not allow the amendment.
On June 22, 2005, the trial court ruled on Jones’s and Watts’s motion for summary judgment or, in the alternative, summary adjudication. It first found that Armenta had not “met her burden to show that she can link an out of spec part with any particular invoice.” In so finding, the court sustained defendants’ objections to Armenta’s expert declaration on the issue, finding the declaration to be without adequate foundation.
The trial court rejected Armenta’s claim that under a fraudulent inducement theory, she had no burden of linking any out of spec or substandard parts to particular invoices. The court pointed out that Armenta’s evidence “show[ed] that the ‘fraudulent inducement’ could only have occurred, if at all, during limited time periods and could only have affected a relatively few transactions.” There were only a few years in which parts were made out of 81 and out of spec 85 metal. The time during which 81 metal was used varied for different parts, and some parts never were made of 81 metal. Additionally, the Phase II cities had longstanding relationships with Jones, and purchases of Jones products prior to the years in which 81 metal was used could not have been fraudulently induced.
Under these circumstances, “the question of whether a particular transaction was ‘fraudulently induced’ or potentially false depends entirely on when the transaction occurred and the type of product purchased. . . . [The court concluded] that this determination can only be made on an invoice-by-invoice basis.” Since Armenta failed to show that the Phase II cities received out of spec parts and tie the parts to particular invoices, she failed to meet her burden of establishing a triable issue of fact necessary to preclude a grant of summary judgment.
On July 14, 2005, the trial court entered an order adjudicating and dismissing the claims of the Phase II cities. The order stated that the court summarily adjudicated the alleged false claims submitted to the Phase II cities. It also stated: “The claims of the Relator [Armenta] on behalf of Real Parties Contra Costa Water District, City of Corona, City of Santa Cruz and City of Vallejo . . . are dismissed with prejudice, and the Relator and the Second Phase Cities shall take nothing in this action with respect to those claims.” On August 17, 2005, Armenta filed a notice of appeal from the June 22 and July 14, 2005 orders, which she identified as appealable orders.
DISCUSSION
It is fundamental that an appeal may be taken only from an appealable judgment or order. (Old Republic Ins. Co. v. St. Paul Fire & Marine Ins. Co. (1996) 45 Cal.App.4th 631, 638-639.) Absent an appealable judgment or order, this court is without jurisdiction to hear an appeal. (Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th 1064, 1070.) Appealable judgments or orders are those declared to be so by statute. (Old Republic Ins. Co., supra, at pp. 638-639; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 13, pp. 72-73; e.g., Code Civ. Proc., § 904.1)
“California is governed by the ‘one final judgment’ rule which provides ‘interlocutory or interim orders are not appealable, but are only “reviewable on appeal” from the final judgment.’ [Citation.] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the courts and impede the judicial process. [Citation.]” (Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1070.) In determining whether a judgment or order is an appealable final judgment, “[i]t is the substance and effect of the adjudication, and not the form,” which is critical. (Ibid.) If the judgment or order disposes of all issues in the action or between the parties, then it may be considered an appealable final judgment. (Id. at pp. 1070-1071.)
Code of Civil Procedure section 437c provides that summary judgments are appealable, but “it also provides for orders other than for summary judgment (i.e., summary adjudication), the proper remedy is a petition for a peremptory writ, not an appeal. (Id., § 437c, subd. ([m]).)” (Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1071.) Thus, there is no statutory authorization for appeal from an order granting summary adjudication. (Ibid.; Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 76.)
An order of dismissal may be appealable, even if it does not dispose of the entire action, where it finally resolves the issues between the particular parties to whom it applies. (California Dental Assn. v. California Dental Hygienists’ Assn. (1990) 222 Cal.App.3d 49, 60; Will v. Engebretson & Co. (1989) 213 Cal.App.3d 1033, 1039.) This rule applies both where individual plaintiffs (e.g., California Dental Assn., supra, at p. 60) or where individual defendants (e.g., Will, supra, at p. 1039) are removed from the action by the dismissal.
Here, the June 22, 2005 order granting Jones’s and Watts’s motion for summary judgment or, in the alternative, summary adjudication clearly is nonappealable. If it is considered to be an order granting summary adjudication, it is nonappealable. (Code Civ. Proc., § 437c, subd. (m); Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1071; Melamed v. City of Long Beach, supra, 15 Cal.App.4th at p. 76.) Even if it were an order granting the motion for summary judgment, it would not be appealable. While a summary judgment is appealable, an order granting a motion for summary judgment is not. (Modica v. Merin (1991) 234 Cal.App.3d 1072, 1073; Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671.)
Whether the July 14, 2005 order is appealable is resolved by reference to the Mueller opinion. In Mueller, Armenta appealed from summary judgments entered in favor of Mueller and Tyco and also challenged an order revoking the trial court’s grant of leave to file a second amended complaint. Mueller and Tyco claimed the appeal was untimely as to the order revoking the grant of leave to file a second amended complaint.
In addressing this claim, we explained that “[a] qui tam action differs from other actions. The governmental entity on behalf of which a qui tam plaintiff sues under the CFCA does not become a party to the suit unless and until the entity intervenes in the action. (Cf. U.S. ex rel. Mayfield v. Lockheed Martin Engin. (S.D. Tex. 2002) 186 F.Supp.2d 711, 714, fn. 1; U.S. ex rel. Farrell v. SKF, USA, Inc. (W.D.N.Y. 1999) 32 F.Supp.2d 617, 618.) The qui tam plaintiff does not act solely as a representative for governmental entities which do not intervene, however.
“The CFCA authorizes an individual to bring suit for a violation of the act not only on behalf of a defrauded governmental entity but in her own right as well. ([Gov. Code,] § 12652, subd. (c)(1).) In essence, the act makes a limited, conditional, partial assignment of the governmental entities’ cause of action to the qui tam plaintiff, or relator, who brings suit. (In re Schimmels (9th Cir. 1997) 127 F.3d 875, 884; see also Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000) 529 U.S. 765, 773.)
“In short, Armenta has a personal stake in the action beyond her representative stake. It is not only the governmental entities on behalf of which she sues who will recover damages but Armenta as well. ([Gov. Code,] § 12652, subds. (g)(2), (3).) The order partially revoking the court’s grant of Armenta’s motion for leave to file her second amended complaint therefore did not resolve all causes of action between Armenta and the defendants, and was not appealable when rendered. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743.) Inasmuch as the summary judgments entered in favor of Mueller and Tyco dispose of all claims against them, however, we may consider the propriety of the revocation order upon review of the judgments.” (Mueller, supra, 142 Cal.App.4th at pp. 641-642.)
With respect to the instant appeal, the July 14, 2005 order “did not resolve all causes of action between Armenta and the defendants, and was not appealable.” (Mueller, supra, 142 Cal.App.4th at p. 642; California Dental Assn. v. California Dental Hygienists’ Assn., supra, 222 Cal.App.3d at p. 60; Will v. Engebretson & Co., supra, 213 Cal.App.3d at p. 1039.) That the order resolved all causes of action as to the Phase II cities does not make the order appealable. It is Armenta who is the plaintiff, not the Phase II cities. (Mueller, supra, at p. 641.)
Contrast the instant case with Will v. Engebretson & Co., supra, 213 Cal.App.3d 1033. There, Will, a minority shareholder, filed a shareholder derivative action against the company and its majority shareholders, the Engebretsons. Throughout the pendency of the proceedings, Will also alleged personal causes of action against the Engebretsons, and various cross-complaints were filed. (Id. at p. 1036, 1038-1039.) Ultimately, the trial court severed trial of the shareholder derivative action and dismissed that action. (Id. at p. 1038.) The question was whether the judgment of dismissal was appealable.
The appellate court noted that while the complaint was filed in Will’s name against the company and the Engebretsons, “the suit seeks to enforce a cause of action the Company has against the Engebretsons for injuries Will alleges it suffered as a result of the acts of the Engebretsons. Thus, although Company is a defendant in the suit, it is nevertheless the real plaintiff and it alone will benefit from any judgment. [Citation.] The action is the only lawsuit between the Engebretsons and Company, and the only suit in which Company’s rights can be litigated as against the Engebretsons. While the Engebretsons are parties to the lawsuit as a whole, dismissal of the derivative action served to resolve all issues between them and Company.” (Will v. Engebretson & Co., supra, 213 Cal.App.3d at p. 1039.) The judgment of dismissal therefore was appealable. (Ibid.)
Here, while Armenta brought this action on behalf of the Phase II cities, she too is a real plaintiff and stands to benefit from any judgment against defendants on behalf of the Phase II cities and the remaining real parties. (Mueller, supra, 142 Cal.App.4th at pp. 641-642.) This distinguishes a qui tam action from a shareholder derivative action, and the instant case from Will, and illustrates why the July 14, 2005 order is not appealable.
Armenta requests that, if we hold the June 22 and July 14, 2005 orders to be nonappealable, we treat the appeal as a writ petition and address the merits. As recounted above, Armenta already filed a writ petition seeking review of the July 14 order. We denied that petition, stating that Armenta “has an adequate remedy on appeal.” We see no reason to change our position on the matter.
While “[a]n appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, . . . that power should be exercised only in unusual circumstances. [Citation.] ‘A petition to treat a nonappealable order as a writ should only be granted under extraordinary circumstances, “‘compelling enough to indicate the propriety of a petition for writ . . . in the first instance . . . .’ [Citation.]”’ [Citation.]” (H. D. Ardaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) Inasmuch as circumstances here were not compelling enough for issuance of a writ in the first instance, treatment of Armenta’s appeal as a writ petition is not appropriate.
We acknowledge that by waiting until a final judgment is entered, there is a possibility of unnecessary trial proceedings. (H. D. Ardaiz, Ltd. v. County of San Joaquin, supra, 96 Cal.App.4th at p. 1367.) As noted in our introduction, however, this litigation has been pending for 10 years, during which there have been numerous appeals and writ proceedings. In addition, there have been petitions for review in both City of Pomona v. Superior Court, supra, 89 Cal.App.4th 793 and Mueller, supra, 142 Cal.App.4th 636. If every phase of the proceedings is subject to appellate review, an already lengthy litigation will be prolonged even further. Declining to treat the appeal as a writ petition will serve the goal of “prevent[ing] piecemeal dispositions and costly multiple appeals which burden the courts and impede the judicial process.” (Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1070.)
In conjunction with the motion to dismiss, the parties filed requests for judicial notice of various documents filed in the case. The requests are granted, although the majority of the documents are not determinative of our resolution of the appeal.
DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
I concur: MALLANO, Acting P. J.
I concur, reluctantly.
I still believe we should have reviewed the October 2004 orders denying the motion to amend and granting summary adjudication when those matters were brought before us back then -- but we didn’t and it is now June 2007 and several more orders have been made. In the end, and independent of the reasons stated in the majority opinion, I believe our intervention at this time would create more problems than it would solve -- particularly in light of the trial court’s current efforts to bring this case to conclusion within a reasonable time.
VOGEL, J.