Welch v. Trefelner, A112270 (Cal. App. 9/28/2007)

• Decision Date: 28 September 2007
• Docket Number: A112270
• Court: California Court of Appeals Court of Appeals
• Parties: FRANK WELCH, Cross-complainant and Appellant, v. ERIC TREFELNER et al., Cross-defendants and Respondents.

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FRANK WELCH, Cross-complainant and Appellant, v. ERIC TREFELNER et al., Cross-defendants and Respondents.

A112270

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

September 28, 2007

NOT TO BE PUBLISHED

Appeal from the San Mateo County, Super. Ct. No. 434857.

SWAGER, J.

This appeal has been taken from an order that struck an amended cross-complaint. Appellant claims that respondents' motion to strike was erroneously granted. We conclude that the appeal is untimely and must be dismissed.

PROCEDURAL HISTORY

On October 15, 2003, respondent Eric Trefelner filed a complaint against defendants Frank and Gail Welch for declaratory and injunctive relief and to quiet title to a prescriptive easement. Defendants answered the complaint, and on November 14, 2003, appellant Frank Welch filed a cross-complaint for intentional interference with economic relationship against Trefelner as the sole cross-defendant.¹ On August 27, 2004, the trial court scheduled a mandatory settlement conference and set the case for jury trial on February 22, 2005.

On December 9, 2004, pursuant to a stipulation Trefelner filed a first amended complaint against defendants which added a declaratory relief cause of action based on alleged acquisition of an implied easement. Defendants thereafter filed an answer to the first amended complaint.

The pleading at issue in the present appeal is an amended cross-complaint filed by appellant without leave of the court on January 13, 2005, which added causes of action for intentional and negligent interference with prospective business advantage, intentional and negligent interference with contractual relationship, abatement of a nuisance, and abuse of process against Trefelner, and named five new cross-defendants: Paul Perkovic, Kathleen Sussman, Anne Hughes, Marilyn Dodd, and George Irving.

After the trial date was subsequently continued to August 8, 2005, cross-defendants filed a series of motions directed at the amended cross-complaint. As pertinent here, first Trefelner, Sussman, Hughes, and Dodd, followed separately by Perkovic and Irving, moved to strike and demurred to the amended cross-complaint based on the failure of appellant to obtain leave of the court before the pleading was filed (Code Civ. Proc., §§ 428.50, 435). Following a hearing on March 29, 2005, the trial court granted the motions to strike.² An order granting the motion to strike by Perkovic and Irving was filed on April 19, 2005; an order granting the motion to strike by Trefelner, Sussman, Hughes, and Dodd was filed on May 12, 2005, and served on May 17, 2005. Judgment in favor of Perkovic and Irving was filed on August 22, 2005; notice of entry of that judgment is filed August 29, 2005. Notice of appeal from the judgment dated August 22, 2005, was filed by appellant on October 21, 2005.

DISCUSSION

Appellant claims that the trial court erred by striking the amended cross-complaint for failure to obtain prior leave of the court. Appellant's position is that where, as here, a cross-complaint is filed "at the time of filing of an answer to the complaint," subdivision (a) of Code of Civil Procedure section 428.50 "authorizes the filing of a cross-complaint" without leave of the court. Appellant also complains that even if the court properly struck the amended cross-complaint, the previously filed "original cross-complaint" remains unaffected and stands as a valid pleading.

I. The Validity and Timeliness of the Notice of Appeal.

We first confront the contention of respondents that the appeal is defective for several reasons. Trefelner, Sussman, Hughes and Dodd argue that appellant simply did not file any notice of appeal from the order granting their motion to strike the cross-complaint. They add that any time limit to file an appeal from that order has now lapsed. Perkovic and Irving, who filed a separate motion and obtained a separate order striking the cross-complaint, argue that the appeal from the April 19, 2005, order was untimely, and therefore we have no jurisdiction over the appeal.

A. The Order Granting the Motion to Strike of Trefelner, Sussman, Hughes and Dodd.

We agree with Trefelner, Sussman, Hughes and Dodd that no appeal has been taken from the trial court order that granted their motion to strike the amended cross-complaint. The judgment and the appeal taken from it are both explicit and definite. The notice of appeal filed by appellant specifies that appeal has been taken from the "Judgment filed on August 22, 2005." The judgment filed on August 22, 2005, expressly "granted Cross-Defendants PAUL PERKOVIC and GEORGE IRVING'S motion to strike the cross-complaint." (Italics added.) The notice of entry of that judgment states that it was "entered in favor of Cross-Defendants PAUL PERKOVIC and GEORGE IRVING and against Defendant/Cross-Complainant FRANK WELCH." (Italics added.) No mention is made in the judgment or notice of entry of judgment of Trefelner, Sussman, Hughes and Dodd, who filed a separate motion to strike and obtained a separate order striking the cross-complaint. No judgment was entered upon that order; no appeal was taken from that order; no appeal was taken from any judgment or order that mentioned Trefelner, Sussman, Hughes and Dodd.

We realize that we must interpret the notice of appeal liberally in favor of its sufficiency (Cal. Rules of Court, rule 8.100). (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) " `[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' [Citation.]" (Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1307.) Appellant requests that "the instant appeal be deemed to be from the Order granting the Motion to Strike the First Amended Cross-Complaint as to" cross-defendants Trefelner, Sussman, Hughes and Dodd. However, we cannot in the present case use the rule of liberal construction to expand the scope of the notice of appeal to include a different order, in favor of different parties, issued on a different date. (See In re Gonsalves (1957) 48 Cal.2d 638, 642-643; D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361; Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 739-740.) Upon examination of the notice of appeal, cross-defendants Trefelner, Sussman, Hughes and Dodd were reasonably entitled to understand that no appeal had been filed from the order on their motion to strike the cross-complaint. The appeal from the judgment in favor of Perkovic and Irving, filed on August 22, 2005, was wholly ineffective to bring an appeal from the earlier, discrete order in favor of Trefelner, Sussman, Hughes, and Dodd. (See Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649, 656-657; Estate of Roberson (1952) 114 Cal.App.2d 267, 270.) We thus conclude that no appeal has been taken from the order granting the motion to strike by Trefelner, Sussman, Hughes, and Dodd, which was filed on May 12, 2005, and served on May 17, 2005.³

B. The Order Granting the Motion to Strike of Perkovic and Irving.

We turn to an examination of the only appeal which is before us: the one filed from the order in favor of respondents Perkovic and Irving, which was filed on April 19, 2005, and filed as a judgment on August 22, 2005. They claim that the notice of appeal was not timely filed. They submit that the "determinative" date for purposes of commencing the time limit within which to file the appeal was not the judgment of August 22, 2005, but rather the prior, appealable order of April 19, 2005, which granted the motion to strike. They argue that as measured from the date of the appealable order, the appeal filed on October 21, 2005, was untimely.

The timeliness of the appeal is "governed by rule 8.104(a), which provides as follows: `Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (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; or [¶] (3) 180 days after entry of judgment.' The term `judgment,' for purposes of rule 8.104(a), includes an appealable order. (Rule 8.104(f).)" (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 898, fn. omitted.) "`As used in (a) . . ., "judgment" includes an appealable order if the appeal is from an appealable order.'" (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1455.)

The order which granted the motion to strike the amended cross-complaint was an appealable order as to respondents other than Trefelner. (Himmel v. City Council (1959) 169 Cal.App.2d 97, 102.) " `Insofar as the appealability of an order striking a cross-complaint is concerned, it is the general rule that where the parties to the cross-complaint are identical to the parties to the original action, an order striking a cross-complaint is not appealable because it does not constitute a final judgment, the propriety of such an order being reviewable on the appeal from the final judgment. [Citations.] Where, on the other hand, the cross-complaint names new parties or codefendants the order striking a cross-complaint may constitute a final and appealable judgment, provided it adjudicates rights as between the cross-complainant and the new parties or the codefendant cross-defendants. [Citations.]' [Citation.]" (Bob Baker Enterprises, Inc. v. Chrysler Corp. (1994) 30 Cal.App.4th 678, 685; see also Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 878.) "[A]s between the...