Opinion
G057231
01-31-2020
ROBERT SWEETING, Plaintiff and Appellant, v. CHICAGO TITLE INSURANCE COMPANY et al., Defendants and Respondents.
Robert Sweeting in pro. per. for Plaintiff and Appellant. Fidelity National Law Group and Sheri M. Kanesaka for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2008-00104237) OPINION Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Motion to dismiss appeal granted; appeal dismissed. Robert Sweeting in pro. per. for Plaintiff and Appellant. Fidelity National Law Group and Sheri M. Kanesaka for Defendants and Respondents.
* * *
Before Moore, Acting, P.J., Thompson, J., and Goethals, J.
This is the fifth appeal in this action filed by Robert Sweeting against several defendants including Chicago Title Company and Chicago Title Insurance Company (hereafter referred to collectively and in the singular as "Chicago Title"), after he lost his residential property to foreclosure in 2008 as a result of what he claims was a fraudulent refinance. (Sweeting v. Fremont Reorganizing Corporation (Jan. 10, 2012, G043356) [nonpub. opn.]; Sweeting v. Island Source II, LLC, et al. (Dec. 22, 2011, G043924) [nonpub. opn.]; Sweeting v. Fremont Reorganizing Corp. et al. (May 20, 2010, G043281) [appeal dismissed]; and Sweeting v. Chicago Title Company et al. (March 28, 2017, G051131 [nonpub. opn.].) In Sweeting v. Chicago Title Company et al., supra, G051131 (hereafter "Sweeting 4"), we affirmed the November 24, 2014 judgment in favor of Chicago Title dismissing it from the action after its demurrer was sustained without leave to amend. Our decision became final and remittitur issued in Sweeting 4, supra, G051131 on June 15, 2017.
On January 14, 2019, Sweeting filed a notice of appeal checking the box indicating the appeal was from a "judgment after court trial" with no date of the judgment being identified. His subsequent civil case information statement (Cal. Rules of Court, rule 8.100(g)) identified the appeal as being from a judgment of dismissal entered on January 4, 2019 after a "MOTION TO VACATE DISMISSAL." Sweeting attached to his civil case information statement a minute order dated January 4, 2019 on his "motion to vacate," which the trial court stated was an untimely motion under Code of Civil Procedure section 1008 for reconsideration of an order entered May 25, 2018. The May 25, 2018 order pertained to Sweeting's motions to modify orders the trial court made in 2017 dismissing all remaining defendants (apparently unserved) from the action for failure to prosecute. The May 25, 2018 order reconfirms that all remaining defendants in the action were dismissed.
Sweeting's civil case information statement identified as respondents to this appeal as "all unanswered defendants," Chicago Title and Mortgage Electronic Registration Systems, Inc. Sweeting then filed a declaration which indicated he wanted only Chicago Title designated as a respondent to this appeal. Accordingly, on April 30, 2019, the court issued an order stating that if no opposition was filed by any party, all defendants and respondents other than Chicago Title would be dismissed from the appeal and the appeal would proceed only as Chicago Title.
No response to the court's April 30, 2019 order was received from Sweeting. Chicago Title filed a response supported by a request for judicial notice (which we later granted) of various judgments and orders filed in the action and of our opinion and the remittitur in Sweeting 4, supra, G051131. Chicago Title argued that because it obtained a judgment in its favor on November 24, 2014, the judgment was affirmed in Sweeting 4, supra, G051131, and this court's decision was now final, it was not a respondent to this appeal.
Before this court issued an order following up on the April 30, 2019 order, Sweeting filed his appellant's opening brief. His brief makes a passing reference to the trial court having ruled that "Unanswered Defendants were not served the [Fourth Amended Complaint]," but in his statement of appealability states the appeal is from the November 24, 2014 judgment of dismissal of Chicago Title after its demurrer was sustained without leave to amend. His recitation of the procedural history of the case ends with the November 2014 judgment for Chicago Title. His legal argument is devoted exclusively to whether his causes of action against Chicago Title were adequately pled and he concludes the November 24, 2014 judgment for Chicago Title should be reversed. There is no coherent discussion of the January 4, 2019 order from which he purported to appeal.
On November 25, 2019, we ordered that Chicago Title's response to our April 30, 2019 order was deemed to be a motion to dismiss the appeal for lack of jurisdiction and invited opposition from Sweeting. Sweeting filed an opposition that does not address whether there is any appealable order or judgment over which this court has jurisdiction. Rather, Sweeting argues Chicago Title's demurrer was improperly sustained in 2014 and he properly served the defendants who did not answer the complaint.
This court may only entertain a timely filed appeal from an appealable judgment or order. (Cal. Rules of Court, rule 8.100(a).) If an appeal is untimely, the appellate court has no jurisdiction to consider its merits and the appeal must be dismissed. (Cal. Rules of Court, rule 8.104(b); Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762.) Similarly, the appellate court has no jurisdiction to entertain an appeal from a nonappealable judgment or order and must ordinarily dismiss such an appeal. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Sweeting's appeal fails on both fronts and must be dismissed.
First, Sweeting's notice of appeal filed on January 14, 2019 did not identify the order from which he purportedly appealed. His civil case information statement identified the appeal as being from the January 4, 2019 order denying a Code of Civil Procedure section 1008 motion to reconsider its May 25, 2018 order dismissing unserved defendants for failure to prosecute. An order denying a Code of Civil Procedure section 1008 motion for reconsideration is not appealable but may be reviewed as part of an appeal from the underlying order. (Code Civ. Proc., § 1008, subd. (g).) However, any attempt by Sweeting to appeal the May 25, 2018 order is untimely. (Cal. Rules of Court, rule 8.104(a)(1)(C) [maximum time to appeal 180 days after entry of order].) Accordingly, to the extent Sweeting purports to appeal the dismissal of unserved defendants, the appeal must be dismissed.
Second, it is clear from Sweeting's declaration filed on April 29, 2019, and his opening brief, he is only challenging the November 24, 2014 judgment in favor of Chicago Title. An appeal from that judgment is untimely and must be dismissed. (Cal. Rules of Court, rule 8.104(a).)
For this reason, we need not also consider principles of law of the case that bar Sweeting's attempt at a second appeal of the November 24, 2014 judgment for Chicago Title, which was affirmed in Sweeting 4, supra, G051131. (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291 [no relitigation of matters previously decided by reviewing court].)
DISPOSITION
The motion to dismiss is granted. The appeal is dismissed. Respondents are awarded their costs on appeal.