Don Jose's Restaurant, Inc. v. Truck Ins. Exchange

• Decision Date: 28 February 1997
• Docket Number: No. G015449,G015449
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1569, 97 Daily Journal D.A.R. 2211 DON JOSE'S RESTAURANT, INC. et al., Plaintiffs and Appellants, v. TRUCK INSURANCE EXCHANGE et al., Defendants and Respondents.

Page 370

61 Cal.Rptr.2d 370

53 Cal.App.4th 115, 97 Cal. Daily Op. Serv. 1569,

97 Daily Journal D.A.R. 2211

DON JOSE'S RESTAURANT, INC. et al., Plaintiffs and Appellants, v. TRUCK INSURANCE EXCHANGE et al., Defendants and Respondents.

No. G015449.

Court of Appeal, Fourth District, Division 3, California.

Feb. 28, 1997.

As Modified March 24, 1997.

Clifford W. Roberts, Jr., Tustin, for Plaintiffs and Appellants.

Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, Ann K. Johnston, Irvine, Horvitz & Levy, Mitchell C. Tilner and Elizabeth Skorcz Anthony, Encino, for Defendants and Respondents.

SILLS, Presiding Justice.

In this case we condemn the artifice of trying to create an appealable order from an otherwise nonappealable grant of summary adjudication by dismissing the remaining causes of action without prejudice but with a waiver of applicable time bars. The one final judgment rule remains the rule in California. (See generally Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, 29 Cal.Rptr.2d 804, 872 P.2d 143 ["an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as 'separate and independent' from those remaining."].)

The facts here are simple. Plaintiffs sued defendant insurance companies on no less than eleven causes of action. Defendants brought a motion for summary adjudication on two causes of action. That motion was granted. Plaintiffs and defendants then entered into a formal written stipulation in which the plaintiffs agreed to dismiss all their remaining causes of action, but without prejudice and with a waiver of all applicable statutes of limitation. Thus the parties agreed that in the event the plaintiffs' appeal from the trial court's "order regarding [the] motion for summary adjudication" was successful and the matter was remanded, the action would proceed on all the causes of action set forth in the latest complaint. On the other hand, if the appellate court affirmed the trial court's order, then the plaintiffs agreed to dismiss their remaining causes with prejudice. Plaintiffs then filed a notice of appeal from the trial court's order granting summary adjudication on two of the eleven causes of action.

Not so fast. This is not one of those cases where the substance of what is going on is an appeal from a final disposition of all issues between two parties, where the appellate court may be willing to overlook the absence of a formal piece of paper embodying that disposition. (See Morehart, supra, 7 Cal.4th at p. 740, 29 Cal.Rptr.2d 804, 872 P.2d 143 ["the order appealed from may be amended so as to convert it into a judgment encompassing actual determinations of all the remaining issues...."]; Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 538-539, 4 Cal.Rptr.2d 361 [construing order granting summary judgment to incorporate formal judgment to same effect]; compare with Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671, 242 Cal.Rptr. 84 ["wearying" of practice of saving appeals by deeming order to sustain a demurrer a judgment of dismissal].)

Nor does this case fit the classic "collateral judgment" exception to the one final judgment rule (e.g., a pendente lite support order in a family law case). Here, the two causes of action disposed of are integral to plaintiff's entire case (an insurance coverage and bad faith suit) and necessary to a correct determination of the remaining causes of action. (See Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226-1230, 11 Cal.Rptr.2d 780.)

When our Supreme Court addressed the problem of a disposition of less than all causes of action in Tenhet v. Boswell (1976) 18 Cal.3d 150, 133 Cal.Rptr. 10, 554 P.2d 330, it indicated, albeit indirectly, that there would be no exceptions when parties craft stipulations which allow remaining causes of action to survive to trial. After first laying down the "normal" one final judgment rule, ¹ the Tenhet court recognized this exception: "[T]he rule has been modified in cases in which the trial court's failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial." (Id. at p. 154, 133 Cal.Rptr. 10, 554 P.2d 330, emphasis added.)

The stipulation here virtually exudes an intention to retain the remaining causes of action for trial. True, the dismissed causes of action would not be brought back to life if the defendants prevailed. That scenario, however, is functionally indistinguishable from the conventional situation in which the trial court's disposition of one cause of action has the practical effect of substantially weakening a plaintiff's case, but other, weaker, causes of action still remain to be tried. The plaintiff might still possibly prevail on those causes of action. If the effect of the summary adjudication on two causes of action here really was to eliminate the remaining causes of action, then the defendant should have been able to bring another summary adjudication motion to mop up the rest of the plaintiffs' case. ² And if not, then it is clear that all issues between the parties on appeal have not been adjudicated.

Either way, the one final judgment rule does not allow contingent causes of action to exist in a kind of appellate netherworld. The substance of this case is that there was a disposition of only...