Global Reach Investment Corp. v. Burlingame Investment Corp., A118969 (Cal. App. 2/11/2008)

• Decision Date: 11 February 2008
• Docket Number: A118969
• Parties: GLOBAL REACH INVESTMENT CORPORATION, Plaintiff and Appellant, v. BURLINGAME INVESTMENT CORPORATION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

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GLOBAL REACH INVESTMENT CORPORATION, Plaintiff and Appellant, v. BURLINGAME INVESTMENT CORPORATION, Defendant and Respondent.

A118969

Court of Appeals of California, First Appellate District, Division Three

February 11, 2008

NOT TO BE PUBLISHED

Appeal from the Alameda County, Super. Ct. No. 05-248721.

SIGGINS, J.

We dismiss as untimely this appeal by Global Reach Investment Corporation (Global Reach) following the dismissal of its lawsuit against Burlingame Investment Corporation (BIC). Global Reach's lawsuit was dismissed for its failure to file an undertaking pursuant to Code of Civil Procedure section 1030 as ordered by the trial court.¹

California Rules of Court, rule 8.104(a) provides, in relevant part, that "a notice of appeal must be filed on or before . . . . [¶] . . . [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled `Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service . . . ." "As used in [8.104](a) . . ., `judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(f).)

BIC successfully moved the trial court under section 1030 to require Global Reach to post an undertaking in the amount of $1,000,000 within 30 days, or suffer dismissal.² Global Reach failed to post the required bond and BIC moved to dismiss the action under section 1030, subdivision (d). On June 13, 2007, the trial court issued a written order granting BIC's motion to dismiss that provides: "This action is hereby DISMISSED."

BIC served notice of entry of the dismissal order on June 14, 2007. The court entered a judgment of dismissal on June 27. Global Reach filed a notice of appeal on August 24, purporting to take an appeal from the June 27, 2007, judgment of dismissal. But the notice of appeal was filed 71 days after the order granting BIC's motion to dismiss.

BIC moves to dismiss this appeal because Global Reach "failed to appeal within sixty days of notice of entry of the trial court's signed, written order dismissing this lawsuit." Global Reach contends the time to appeal only began to run on June 27 when the judgment was entered. We have permitted BIC to file a reply in support of its motion to dismiss. We conclude that Global Reach's appeal is untimely. The time for this appeal began to run on June 14, when notice of the order entering the dismissal was served.

"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." (§ 581d.) (See Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1120, fn. 2 [treating dismissal order as appealable judgment when order was in writing, signed by the court, and filed in the action]; see also Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1085 [appeal filed within 60 days of notice of entry of dismissal was timely and proper subject for appellate review]; Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1011, fn. 2 ["the order of dismissal was a final, appealable order"].

Global Reach seeks to distinguish the dismissal order in this case from dismissals entered pursuant to section 581d, and says the dismissal in this case was not immediately appealable because subdivision (g) of section 1030 "specifically provides that `[a]n order granting . . . a motion . . . under this section is not appealable.' " But the full text of section 1030, subdivision (g) provides: "An order granting or denying a motion for an undertaking under this section is not appealable." (Italics added.) Subdivision (g) has no application to this appeal because Global Reach is not appealing from the order requiring it to post security, but from the order dismissing the action. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 ["it `has long been the rule in this state that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment' "].)

Global Reach contends that a dismissal pursuant to section 1030, subdivision (d) is not an appealable order because it "is no different than an order granting a demurrer or for summary judgment", but cites no authority to support its contention. The court's June 13 order did not simply grant BIC's motion. It also dismissed the action. A judgment was not required by section 1030, subdivision (d). Nor does an appeal from the dismissal order "violate the single judgment rule," because a dismissal order constitutes a judgment pursuant to section 581d.

Global Reach makes no argument that BIC has failed to comply with the procedural requirements of section 581d. Instead, Global Reach argues that section 581d has no bearing upon a dismissal under section 1030, subdivision (d). According to Global Reach, "[s]ection 581 creates an exception to the general rule that the party may only appeal from a final judgment," and "[t]he absence of any specific authority under § 581 is fatal to any argument that the section controls." But in addition to specifying when an action may be dismissed, section 581 states: "(m) The provisions of this section shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action . . . ." The cases cited by Global Reach in support of its argument on the limited reach of 581d were decided under predecessor statutes, and long before section 581 was amended to add the nonexclusivity provision in subdivision (m). (See Stats. 1993, ch. 456, § 9; cf. Integral Land Corp. v. Anderson (1944) 62 Cal.App.2d 770, 772; Ross v. O'Brien (1934) 1 Cal.App.2d 496, 499, quoting Egan v. McCray (1934) 220 Cal.546, 547; cf. also Lavine v. Jessup (1957) 48 Cal.2d 611, 615-616 [holding that the appealability of the multiple orders at issue in that case was "to be determined in accordance with the rules pertaining to appeals from orders sustaining demurrers rather than under the rules relating to appeals from orders of dismissal," and observing in dicta that the predecessor to section 581d was restricted to the types of dismissals covered by former section 581].) Modern cases apply section 581d to orders of dismissal on various grounds not specifically enumerated in section 581. (See, e.g., Law Offices of Dixon R. Howell v. Valley, supra, 129 Cal.App.4th at p. 1085 [order granting motion to dismiss based on failure to give notice of statutory arbitration rights]; Kahn v. Lasorda's Dugout, Inc., supra, 109 Cal.App.4th at p. 1120 & fn. 1 [order dismissing action following unsuccessful application for entry of default]; Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1335-1336 [order dismissing action under...