Baskharoon v. Timon Inv. LLC

• Decision Date: 02 April 2020
• Docket Number: G056604
• Court: California Court of Appeals Court of Appeals
• Parties: MIRANDA BASKHAROON et al., Plaintiffs and Appellants, v. TIMON INVESTMENT LLC et al., Defendants and Respondents.

MIRANDA BASKHAROON et al., Plaintiffs and Appellants, v. TIMON INVESTMENT LLC et al., Defendants and Respondents.

G056604

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

April 2, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2016-00837618)

OPINION

Appeal from orders of the Superior Court of Orange County, Ronald L. Bauer, Judge. Dismissed.

Miranda Baskharoon, in pro. per. and Anthony Baskharoon, in pro. per.; Andrew Smyth for Plaintiffs and Appellants.

Yoka & Smith, Alice Chen Smith, Davida M. Frieman and Christine DeMetrius for Defendants and Respondents.

INTRODUCTION

Appellants Miranda and Tony Baskharoon filed a notice of appeal from two trial court orders. The first is an order granting summary adjudication to respondents Timon Investment, LLC, and Summit Team, Inc. The second is an order denying appellants' motion to set aside a judgment, by which appellants mean the order granting summary adjudication. Since the first order is not appealable and there is no judgment to set aside, we do not have jurisdiction to decide this appeal, and we must order it dismissed.

FACTS

Appellants leased premises in Timon's strip mall in Tustin that they used as a cigar store. Summit manages the property for Timon. In October of 2015, a water pipe burst and flooded appellants' store. Appellants alleged they lost all of their stock and the premises was damaged.

Appellants sued their insurance company, Timon, and Summit in February 2016.¹ The amended complaint, the operative pleading, alleged causes of action against Timon and Summit for breach of contract, breach of the covenant of quiet enjoyment, and negligence.

In October 2017, Timon and Summit moved for summary adjudication on the causes of action for breach of contract and breach of the covenant of quiet enjoyment. Shortly afterwards, appellants substituted into the case as their own attorneys.

A mandatory settlement conference was scheduled for December 15, 2017. Appellants did not appear.² The court set an order to show cause (OSC) for dismissal for January 2, 2018.

On January 2, the court, through a minute order, granted Timon's and Summit's motion for summary adjudication and also ordered the case dismissed as a sanction for failing to appear at the December mandatory settlement conference. The summary adjudication motion was granted because there were no triable issues of material fact to support the causes of action for breach of contract and breach of the covenant of quiet enjoyment. The record does not include an opposition to the motion.

On June 14, 2018, appellants moved to set aside what they called a "ruling on summary judgment and judgment entered thereafter." The motion, based on Code of Civil Procedure section 473.5,³ claimed their attorney had "abandoned" them in the midst of discovery because appellants were not paying her. As a result, timely responses were not made. This failure to respond resulted in the granting of a motion asking that requests for admission be deemed admitted, which then led to the granting of the summary adjudication motion.⁴ Appellants proposed to remedy this situation, which they termed a "judgment by default," by submitting discovery responses and an opposition to the summary adjudication motion.⁵ The court denied the set-aside motion on July 16, 2018.

Appellants filed a notice of appeal a week later. They identified the orders of January 5, and July 16, 2018 - the order granting the summary adjudication motion and the order denying the set-aside motion, respectively - as the orders from which they appealed. They checked the boxes for "Judgment after an order granting a summary judgment motion," "An order after judgment under Code of Civil Procedure, § 904.1(a)(2)," and "Other (describe and specify code section that authorizes this appeal)," to which last they added "denial of motion to set aside Summary of judgment CCP. 473" on the form notice of appeal.

DISCUSSION

Our direct appellate jurisdiction is limited to judgments and to appealable orders. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) We also limit our review to documents in the record. (See Tulare Pediatric Health Care Center v. State Dept. of Health Care Services (2019) 41 Cal.App.5th 163, 173; Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1489.)

There is no judgment in the record before us, and appellants' notice of appeal identifies none. Code of Civil Procedure section 581d provides: "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case." An unsigned minute order, which is the only order in the record, is not an appealable judgment. (See Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 368-369.)

The two orders identified in appellants' notice of appeal are the order granting Timon's and Summit's motion for summary adjudication and the order denying appellants' motion to set aside the summary adjudication order, which they erroneously called a summary judgment. Neither is appealable. The order granting a motion for summary adjudication is not an appealable order; it is reviewable by writ in the absenceof a final judgment. (See Code Civ. Proc., § 437c, subd. (m); Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 303-504.) Although an order denying a motion to set aside a judgment is appealable (see Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008; Cochran v. Linn (1984) 159 Cal.App.3d 245, 249), the order appellants sought to set aside was not a judgment. It was an order granting a motion for summary adjudication, one that did not resolve all of the issues between appellants and these respondents. (See Code Civ. Proc., § 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding."])

We should point out that the reason the case was dismissed was not appellants' failure to submit an opposition to the summary adjudication motion or deemed admissions. It was appellants' failure to turn up for a mandatory settlement conference, a proceeding that took place nearly two months after their...