Opinion
B314314
03-11-2024
RUBEN FUENTES, Cross-complainant, Cross-defendant and Appellant, v. RICARDO ARRENDANDO, Cross-complainant, Cross-defendant and Respondent.
Ruben Fuentes, in pro. per., for Cross-complainant, Cross-defendant and Appellant. Anderson &Associates and Michael D. Anderson for Cross-complainant, Cross-defendant and Respondent.
NOT TO BE PUBLISHED
PURPORTED APPEAL from orders of the Superior Court of Los Angeles County, Maurice A. Leiter, Judge. Appeal dismissed.
Ruben Fuentes, in pro. per., for Cross-complainant, Cross-defendant and Appellant.
Anderson &Associates and Michael D. Anderson for Cross-complainant, Cross-defendant and Respondent.
EGERTON, J.
Ruben Fuentes appeals trial court orders granting Ricardo Arrendando's motion for leave to file a cross-complaint under Code of Civil Procedure section 426.50 and denying Fuentes's request for dismissal of his cross-complaint under Code of Civil Procedure section 581. We have a duty to raise issues concerning our jurisdiction on our own motion and thus issued an order to show cause as to why the appeal should not be dismissed for having been taken from nonappealable orders. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1201 ["A reviewing court lacks jurisdiction to consider appeals from a nonappealable order, and has the duty to dismiss such appeals."].) Having reviewed Fuentes's response, we now dismiss the appeal.
Statutory references are to the Code of Civil Procedure.
BACKGROUND
This purported appeal comes to us with a rather peculiar procedural history. In July 2019, Arrendando (representing himself in propria persona) filed an original complaint for professional negligence against Fuentes. The complaint alleged the parties entered into "an attorney-client agreement" under which Fuentes (an attorney) and his law firm were to represent Arrendando in "bankruptcy matters." Fuentes allegedly "provided negligent legal services, resulting in the loss of several real properties, loss of income, and other damages." Fuentes filed an answer and verified cross-complaint for breach of contract. The cross-complaint alleged the parties entered into a contract for legal services; Fuentes "performed all of the significant legal work that the contract required him to perform for [Arrendando's] benefit in his bankruptcy case, his unlawful detainer cases . . . and preparation of his 'Living Trust' "; and Arrendando breached the contract by failing to pay Fuentes's fees.
Arrendando answered the cross-complaint with a general denial. Fuentes responded with a motion for judgment on the pleadings. He argued a general denial was insufficient to answer the cross-complaint because the verified pleading alleged damages in excess of $1,000. (See § 431.40, subd. (a).)
Fuentes also propounded written discovery, including requests for admissions regarding Fuentes's representation of Arrendando in a bankruptcy proceeding and three unlawful detainer proceedings. When Arrendando did not respond, Fuentes filed a series of discovery motions, including a motion to deem all matters set forth in the requests admitted. The trial court granted the motion.
The court scheduled the other discovery motions for a later hearing, noting Fuentes had reserved a hearing date for only one motion.
After receiving service of Fuentes's discovery motions, Arrendando filed a request for dismissal of his complaint without prejudice. Shortly after the trial court granted the motion to deem matters admitted, the court clerk entered the dismissal.
The record shows the clerk received the request for dismissal at the filing window on July 2, 2020, but did not enter the dismissal until August 6, 2020-a little more than a week after the trial court entered its order on Fuentes's discovery motion.
A few weeks later, the court granted Fuentes's motion for judgment on the pleadings. The order gave Arrendando 10 days to file an amended answer. A month later, Arrendando (now represented by counsel) filed his amended answer.
Arrendando moved for leave to file a cross-complaint to Fuentes's pending cross-complaint. He maintained his proposed claim for professional negligence against Fuentes arose out of the same transactions as Fuentes's breach of contract cause of action and thus constituted a" 'related' claim" under the compulsory cross-complaint statute. (See § 426.10, subd. (c).)Arrendando argued the court was statutorily mandated to grant leave to file the cross-complaint, absent a finding of bad faith. (See § 426.50.) Fuentes opposed the motion. He principally argued the compulsory cross-complaint statute did not apply because Arrendando had pled the proposed claim in his original complaint before voluntarily dismissing the pleading.
Before seeking leave to file his cross-complaint, Arrendando moved to vacate the dismissal of his original complaint under section 473. In a supporting declaration, he explained the then-pending motion for judgment on the pleadings coupled with Fuentes's recent discovery motions had caused him "to believe that Fuentes was taking advantage of [Arrendando's] lack of legal knowledge" and that he "needed to retain an attorney and file a new, better complaint with an attorney's assistance." When he filed his request for dismissal, Arrendando said he was unaware that the statute of limitations might bar him from filing a new complaint for professional negligence against Fuentes. The trial court denied Arrendando's motion, concluding he had "not provide[d] any justification for his failure to ascertain the correct law."
Section 426.30, subdivision (a) provides: "Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a crosscomplaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." (Italics added.) Section 426.10, subdivision (c) defines" '[r]elated cause of action'" to mean "a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint."
Section 426.50 provides: "A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action." (Italics added.)
In advance of the hearing on Arrendando's motion, the court issued a tentative ruling indicating its intention to grant Arrendando leave to file his cross-complaint. The same day, Fuentes filed a request for dismissal of his cross-complaint without prejudice. Despite Arrendando's pending motion for leave to file a cross-complaint, Fuentes did not obtain Arrendando's consent to the dismissal. The next day, the court continued the hearing on Arrendando's motion to allow supplemental briefing on the propriety and effect of Fuentes's request for dismissal.
Fuentes-not Arrendando-signed the part of the request for dismissal form affirming the cross-complainant's consent to the dismissal.
After receiving the parties' briefs, the trial court entered its order granting Arrendando's motion for leave to file his cross-complaint and denying Fuentes's request to dismiss his cross-complaint. The court rejected Fuentes's contention that Arrendando's original complaint precluded him from asserting his professional negligence claim in a new cross-complaint.The court agreed with Arrendando that the claim arose out of the same transaction as Fuentes's breach of contract claim and found Arrendando had not acted in bad faith. Thus, the court concluded section 426.50 mandated that it grant Arrendando leave to file his cross-complaint. (See fn. 6, ante.)
The trial court followed Carroll v. Import Motors, Inc. (1995) 33 Cal.App.4th 1429 (Carroll) in reaching this conclusion. Like Arrendando, the plaintiff in Carroll voluntarily dismissed his original complaint for contract rescission after the defendants filed cross-complaints for breach of contract arising out of the same underlying automobile trade-in transaction. (Id. at pp. 1432-1433.) The plaintiff later filed a new complaint against the defendants "similar to the first complaint." (Id. at p. 1433.) In affirming the trial court's order striking the new complaint, the Carroll court explained section 426.30 precluded the plaintiff from "bringing a new action based on claims arising from the same transaction that served as the basis for [the defendants'] cross-complaint" and the plaintiff should have filed the claims "as a compulsory cross-complaint in the first action." (Carroll, at pp. 1435-1436.) The fact that the plaintiff "voluntarily dismissed his complaint in the first action without prejudice," the Carroll court held, "does not change this result." (Id. at p. 1436.) Rather, "[a] plaintiff who has voluntarily dismissed a complaint in an action such as this may always request leave of the court to file a late compulsory cross-complaint and, assuming the plaintiff acted in good faith, such leave will be granted." (Ibid., citing § 426.50, italics added.) Fuentes maintains the original complaint precluded Arrendando from seeking leave to file a cross-complaint. He does not, however, cite, let alone address, Carroll in his appellate briefs.
As for Fuentes's request to dismiss his cross-complaint, the trial court held Arrendando's motion for leave to file his cross-complaint triggered section 581, subdivision (i), which prohibits the "dismissal of an action . . . where affirmative relief has been sought by the cross-complaint of a defendant." Thus, the court denied Fuentes's request.
Although subdivision (i) of section 581 was the lynchpin for the trial court's ruling denying Fuentes's request to dismiss, Fuentes does not cite, let alone address, the subdivision in his appellate briefs.
Fuentes filed a notice of appeal, specifying the date of the orders granting Arrendando's motion for leave to file a crosscomplaint and denying Fuentes's request to dismiss. The notice indicated the appeal was from an "order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13)."
DISCUSSION
1. The Orders Are Not Appealable
" 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792; H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 (H. D. Arnaiz).) Section 904.1 is the "primary statutory basis for appealability in civil matters." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645; H. D. Arnaiz, at pp. 1365-1366.)
Fuentes purports to appeal from the trial court's orders denying his request to dismiss the action under section 581 and granting Arrendando's motion for leave to file a cross-complaint under section 426.50. Neither section is listed among the appealable orders described in section 904.1. Absent a statutory basis, these orders are not appealable. (See, e.g., H. D. Arnaiz, supra, 96 Cal.App.4th at pp. 1360, 1366 [order vacating a voluntary dismissal is not an appealable order].)
Fuentes contends the orders are nevertheless appealable as" 'post dismissal'" rulings equivalent to postjudgment orders appealable under section 904.1, subdivision (a)(2).He relies on Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890 (Mesa) and 321 Henderson Receivables Origination LLC v. Ramos (2009) 172 Cal.App.4th 305 (Henderson). Neither case supports his contention.
In his opening brief, Fuentes asserted the orders were appealable under Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16. In Basinger, the orders from which the defendant appealed included an order for entry of judgment nunc pro tunc. (Id. at pp. 20-21.) While that order was not directly appealable, the reviewing court recognized an appeal would lie from the judgment itself. (Id. at p. 21; see § 904.1, subd. (a)(1).) Because "the only impediment to appealability [was] the parties' oversight in failing to ensure the court entered judgment pursuant to its order," the reviewing court deemed the order for entry of judgment nunc pro tunc "to include an appealable judgment and treat[ed] the appeal as from the judgment." (Basinger, at p. 21.) In our order to show cause, we observed that Basinger appeared to be inapposite because neither of the orders here directs entry of judgment. Fuentes did not respond to this point and no longer appears to contend Basinger establishes appealability in this case.
In Mesa, the defendants appealed an order denying their motion to vacate the plaintiffs' voluntary dismissal of a civil action commenced in advance of a contractually mandated arbitration. (Mesa, supra, 232 Cal.App.4th at p. 893.) While the Mesa court acknowledged that "a voluntary dismissal entered by the clerk is (generally) not a judgment," it concluded the dismissal should be treated as a judgment for purposes of conferring appellate jurisdiction over post-dismissal orders because a dismissal, like a judgment," 'constitutes the final determination of a case "where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree." '" (Id. at p. 898.) Accordingly, as the plaintiffs' voluntary dismissal had the effect of ending the litigation, the Mesa court determined it had jurisdiction to review the order denying the defendants' motion to vacate the dismissal as a "postjudgment" order. (Id. at p. 899.)
The plaintiffs in Mesa voluntarily dismissed the court action in an apparent attempt to avoid an imminent adverse attorney fee judgment after the defendants received a favorable interim arbitration award. (Mesa, supra, 232 Cal.App.4th at pp. 892-893; see Civ. Code, § 1717, subd. (b)(2) [providing "there shall be no prevailing party" for purposes of awarding contractual attorney fees if "an action has been voluntarily dismissed"].)
In Henderson, the trial court denied a petition for approval of a structured settlement with a factoring company and dismissed the matter with prejudice after denying the petitioners' request to dismiss the petition voluntarily without prejudice. (Henderson, supra, 172 Cal.App.4th at pp. 312-313.) The factoring company appealed, arguing the trial court erred in denying the petitioners' request for voluntary dismissal without prejudice and, because the voluntary dismissal should have been entered, the court lacked jurisdiction to deny the petition with prejudice. (Id. at pp. 313-316.) Appealability was not an issue in the case. Because the factoring company took the appeal from a final judgment (the trial court's denial of the petition and dismissal of the action with prejudice), the appellate court plainly had jurisdiction to review the order denying the voluntary request to dismiss the action. (See § 906 ["Upon an appeal [from a final judgment under section 904.1] . . . the reviewing court may review . . . any intermediate . . . order . . . which substantially affects the rights of a party."].)
The appeals in both Mesa and Henderson were taken after a judicial action that put an end to the litigation-in Henderson there was a final judgment; in Mesa there was a dismissal equivalent to a final judgment. That is not the case here. Here, Fuentes appeals an order denying his request to dismiss the action. The effect of that order is not to terminate the litigation, but to allow it to proceed. The order is equivalent to an order granting a motion to vacate a voluntary dismissal, which, as the Mesa court recognized, "is not appealable as such because it allows the action to continue until entry of a final judgment occurs." (Mesa, supra, 232 Cal.App.4th at p. 898; see also H. D. Arnaiz, supra, 96 Cal.App.4th at p. 1360 [a ruling on a motion to vacate a voluntary dismissal is not appealable].) The orders were not made after a dismissal or any other final determination of the case. Neither order is appealable.
2. Fuentes Has Not Presented a Compelling Reason for Review by Extraordinary Writ
Despite having taken an appeal from nonappealable orders, Fuentes maintains we should nevertheless treat his appeal as a petition for writ of mandate and reach the merits of his claims. He has not presented a compelling reason to do so.
"In order to confine the use of mandamus to its proper office, the Supreme Court, in various cases, has stated general criteria for determining the propriety of an extraordinary writ: (1) the issue tendered in the writ petition is of widespread interest [citation] or presents a significant and novel constitutional issue [citation]; (2) the trial court's order deprived petitioner of an opportunity to present a substantial portion of his cause of action [citation]; (3) conflicting trial court interpretations of the law require a resolution of the conflict [citation]; (4) the trial court's order is both clearly erroneous as a matter of law and substantially prejudices petitioner's case [citations]; (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to [obtain] relief [citation]; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal." (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274 (Omaha Indemnity); Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 218 (Roden).)
Fuentes fails meaningfully to address these criteria. His request for extraordinary relief is limited to just two sentences, unsupported by citations to the record or a reasoned argument. He contends his "case has merit and it would be . . . unjust if relief is denied by way of dismissing [his] appeal for a procedural trap." Furthermore, Fuentes insists "the briefing and record are extensive and therefore sufficient, nothing suggests the trial court would appear as a party, and an unnecessary trial can be avoided." These bald assertions are insufficient to warrant writ review.
The trial court's orders present two issues, neither of which Fuentes addresses in his briefing-did Arrendando's original complaint preclude him from filing a compulsory cross-complaint under section 426.50; and did Arrendando's motion for leave to file a cross-complaint bar Fuentes from dismissing the action under section 581, subdivision (i). (See fns. 8 &9, ante.) The Carroll court has already analyzed and provided guidance on the first issue. (See Carroll, supra, 33 Cal.App.4th at p. 1436; fn. 8, ante.) The second issue is plainly a product of the peculiar procedural history of this case and cannot be characterized as an issue of widespread interest. Fuentes has not demonstrated a compelling need to have these issues immediately reviewed in an extraordinary writ proceeding. (See, e.g., Roden, supra, 130 Cal.App.4th at pp. 218-220 [where issues presented were tied to the "peculiar facts" of case, appellate court declined request for writ review to provide "general rules on the definition of a money judgment"].)
"The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) It is not, as Fuentes suggests, "a procedural trap" that can be cast off whenever a party claims some hardship might follow the dismissal of an improper appeal. As the Omaha Indemnity court explained, "[w]rit relief, if it were granted at the drop of a hat, would interfere with an orderly administration of justice at the trial and appellate levels. Reviewing courts have been cautioned to guard against the tendency to take '" . . . too lax a view of the 'extraordinary' nature of prerogative writs . . ."' [citation] lest they run the risk of fostering the delay of trials, vexing litigants and trial courts with multiple proceedings, and adding to the delay of judgment appeals pending in the appellate court." (Omaha Indemnity, supra, 209 Cal.App.3d at p. 1272.) When, as here, a party improperly appeals a nonappealable order, we cannot allow a cursory request for writ review to be used as "a device . . . to 'cut into line' ahead of those litigants awaiting determination of postjudgment appeals." (Id. at p. 1273.) Fuentes's request for immediate review falls far short of the showing required to warrant extraordinary relief.
DISPOSITION
The appeal is dismissed. Plaintiff Ricardo Arrendando is entitled to costs.
We concur: EDMON, P. J., LAVIN, J.