Clark Law Firm

I. INTRODUCTION

Mendez Trucking, Inc., Manuel Mendez, and Maria Mendez (plaintiffs) purport to appeal for a second time from a dismissal order in favor of California Compensation Insurance Company, Barney & Barney, LLC, and Glenn Holter (defendants). Plaintiffs also appeal or purport to do so from the denial of post-dismissal motions and a notice of entry of judgment. We dismiss the appeals from: the order of dismissal; the notice of entry of judgment, and the order denying plaintiffs' reconsideration motion. We direct the trial court, on remand, to set aside its determination to deny plaintiffs' motion to vacate the dismissal and enter a new order declining to rule on that request as beyond its jurisdiction.

II. BACKGROUND

By a signed, written order dated and filed on July 24,1998, the trial court dismissed plaintiffs' second amended complaint after sustaining defendants' demurers without leave to amend (the dismissal order). The order provided for unspecified costs to the defendants. On August 14, 1998, plaintiffs filed a reconsideration motion. The August 14, 1998, motion sought reconsideration of the July 24, 1998, order sustaining the demurrers to the second amended complaint without leave to amend. On September 3, 1998, plaintiffs filed a motion to vacate the July 24, 1998, order sustaining the demurrer without leave to amend. On September 21, 1998, prior to rulings on the two pending motions for reconsideration and to vacate, plaintiffs filed a notice of appeal "from the judgment entered... on July 24, 1998,...." On September 24, 1998, after the filing of the notice of appeal, the trial court entered a minute order denying the August 14,1998, and September 3,1998, motions for reconsideration and to vacate. The trial court found that the August 14,1998, reconsideration motion was untimely. (Code Civ. Proc.,¹ § 1008.) Further, on September 24, 1998, the trial court denied the September 3, 1998, motion to vacate as moot. In connection with the appeal which had commenced on September 21, 1998, plaintiffs failed to timely designate a record. As a result, the first appeal was dismissed on December 15,1998, pursuant to California Rules of Court,² rule 10(c). Plaintiffs filed no response or objection to this court's rule 10(c) notice giving them 15 days to cure their default The remittitur issued on February 18, 1998. No voluntary dismissal or abandonment of the first appeal ever occurred. No abandonment pursuant to rule 19(a) was ever filed.

On September 24, 1998, p1aintiffs filed a notice of appeal "from the Order of Superior Court marked 'Filed' on July 24, 1998[,] sustaining without leave to amend the demurers to plaintiffs' Second Amended Complaint....; the Notice of Entry of Judgment served on plaintiffs' counsel on July 31, 1998[,] and the court's denial of plaintiffs' Motion for Reconsideration and Motion to Vacate Judgment of September 24, 1998." The September 24, 1998, notice of appeal is the second one filed in the present litigation. It is the one that has given rise to the present appeal.

III. DISCUSSION

A. No Appeal Lies from the July 24, 1998, Order Sustaining the Demurrers Without Leave to Amend

No appeal lies from what p1aintiffs described as 'the Order of Superior Court... sustaining without leave to amend the demurrers to plaintiffs' Second Amended Complaint...." (I.J. Weinrot and Son, Inc. v. Jackson (1985) 40 Cal.3d 327,331; Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644,651; Wood v. Elling Corp. (1977) 20 Cal.3d 353, 357, fn. 1; Vesely v. Sager (1971) 5 Cal.3d 153, 158, fn. 2; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695,699; Beazell v. Schraaer (1963) 59 Cal.2d 577, 579; Lavine v. Jessup (1957) 48 Cal.2d61 1, 614; Berri v. Superior Court (1955) 43 Cal.2d 856, 858, fn.) However, we construe plaintiff's present appeal as an appeal from the order of dismissal. (Vibert v. Berger (1966)64 Cal.2d 65, 67-68.)

B. Plaintiffs' First Appeal from the Order of Dismissal Having Been Dismissed, They Cannot Secure Appellate Review a Second Time

The order of dismissal entered in the trial court on July 24, 1998, was an appealable order. (§ 904.1, subd. (a); I.J. Weinrot and Son, Inc. v. Jackson, supra, 40 Cal.3d at p.331; Lavine v. Jessup, supra, 48 Cal.2d at p.614; Berri v. Superior Court, supra, 43 Cal.2d at p.860; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) The order of dismissal was appealable as a "judgment" because it was written, signed by the trial court judge, and filed in the action. (§ 581d;³ Vernon v. Great Western Bavik (1996)51 Cal.App.4th 1007, 1011, fn. 2; Chauncey v. Niems (1986)182 Cal.App.3d 967,971; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (Rutter 1998)12:136 rev. #1, 1997, p. 2-60.) The rule 10(c) involuntary dismissal of plaintiffs' first appeal from the July 24,1998, dismissal order operated as an affirmance of that judicial determination. (In re Jasmon 0. (1994)8 Cal.4th 398,413; County of Fresno v. Shelton (1998)66 Cal.App.4th 996, 1005; Conservatorship of Oliver (1961)192 Cal.App.2d 832,836-837; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, 15:48 rev. #1, 1998, p.5-15; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 655, pp.690-691.) Therefore, plaintiffs' present appeal from the July 24, 1998, dismissal order is ineffectual. (§ 913; Conservatorship of Oliver, supra, 192 Cal.App.2d at pp.836-837; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs, supra, ¶ 5:48 rev. #1, 1998, p.5-15; 9 Witkin, Cal. Procedure, supra, Appeal, § 655, p.690.) As expressly stated in section 913, "The dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal." This court's dismissal of plaintiffs' first appeal was not expressly made without prejudice to another appeal. Therefore, plaintiffs cannot now appeal from the trial court's order of dismissal. The present appeal from the order of dismissal must be dismissed. (§ 913; Conservatorship of Oliver, supra, 192 Cal.App.2d at pp. 836-837.)

Plaintiffs contend they voluntarily abandoned the September 21,1998, appeal in that they substantially complied with rule 19(a). Rule 19(a) provides in relevant part:

"At any time before the filing of the record in the reviewing court, the appellant may file in the office of the clerk of the superior court a written abandonment of the appeal; or the parties may file in that office a stipulation for abandonment. The filing of either document shall operate to dismiss the appeal and to restore the jurisdiction of the superior court." Plaintiffs never filed a written abandonment of the September 21,1998, appeal in the superior court. At the hearing in the trial court on September 24,1998, plaintiffs' counsel did state on the record " . . . that we'll withdraw the notice of appeal and refile it."⁴ However, plaintiffs have not cited, nor have we found, any legal authority for the proposition that anything short of filing a written abandonment in the office of the clerk of the superior court suffices as substantial compliance with rule 19(a). Therefore, we conclude no substantial compliance doctrine will excuse the failure to file a written abandonment of the appeal as required by rule 19(a). Further, the parties could not reinvest the trial court with jurisdiction by their consent. (Lerner v. Superior Court (1952)38 Cal.2d 676,680; Takahashi v. Fish and Game Corn. (1947) 30 Cal.2d 719, 725-726, revd. on other grounds (1948)334 U.S. 410; Klnard v. Jordan (1917)175 Cal.13, 15-16; In re Shafier-Wasco Irr. Dist (1942)55 Cal.App.2d 484,486.) Therefore, the September 21,1998, appeal remained pending and jurisdiction was vested in this court until the remittitur was issued on February 18, 1998.

Alternatively, plaintiffs argue their September 24, 1998, notice of appeal amended, superseded, and nullified their September 21, 1998, notice of appeal; therefore, they assert the rule 10(c) dismissal of the September 21, 1998, appeal was "of no legal force or consequence...." They further assert that "[t]he law is well settled that a subsequent, amended notice of appeal supersedes the earlier one." Their sole citation to legal authority is to Dow v. Superior Court (1956)140 Cal.App.2d 399,403. Moreover, they miscite Dow. The Dow court held "[T]he filing of [an amended notice of appeal] within the time limited for the filing of an original notice of appeal might serve as a basis for viewing the modifications as permissible amendments of this scope of the appeal as originally noticed." (Ibid.) While the September 24, 1993, notice of appeal, if designated an amendment to the September 21,1998, document, might have served to broaden the scope of the proceedings, it would not have rendered the first appeal a nullity. Only a voluntary abandonment pursuant to rule 19(a) could have had that effect. (Rule 199a); In re Marriage of Dade (1991) 230 Cal.App.3d 621,625; Whitehead v. Dickey (1965) 232 Cal.App.2d 740, 740-741.)

C. Plaintiffs Cannot Appeal from a Notice of Entry of Judgment

There is no authority for an appeal from "the Notice of Entry of Judgment served on plaintiffs' counsel on July 31, 1998[.] (§904.1, subd. (a); Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177, 1178-1179.) Therefore, the purported appeal from the notice of entry of judgment will be dismissed. (§904.1; Shpiller v. Harry C's Redlands, supra, 13 Cal.App.4th at p.1180.)

D. Plaintiffs Have Not Raised Any Issue on Appeal as to the Order Denying their Statutory Motion to Vacate the Order of Dismissal

There is established authority for the proposition that an order denying a statutory motion to vacate a judgment or order is appealable. (E.g., Hollister Convalescent Hosp., Inc. v. Rico (1975)15 Cal.3d 660, 663-664 [§ 663]; Sokol v. King (1949) 34 Cal.2d 292, 296-297 (denial of a section 663 motion appealable as a special order after final judgment pursuant to former section 963]; Winslow V. Harold G. Ferguson Corp. (1944)25 Cal.2d 274,282 [motion to vacate under § 473 appealable as a special order made after final judgment pursuant to former section 963]; Generale Bank Nederland v. Eyes of the Beholder Ltd (1998) 61 Cal.App.4th 1384, 1394 [§ 473]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674,680 [§ 473]; Howard v. Lufkin (1988) 206 Cal.App.3d 297,300-303 [§ 663]; City of Long Beach v. Crocker National Bank (1986) 179 Cal.App.3d 1114, 1118 & fn. 6 (§ 663]; Cochran v. Linn (1984) 159 Cal.App.3d 245,249 [1473]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1087, fn. 3 [§ 473]; Martin v. Johnson (1979) 88 Cal.App.3d 595,603-604 (§ 473]; but see Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865,871,890 [holding, without discussion or citation to authority, that an appeal from an order denying a motion to set aside and vacate a judgment was nonappealable]; 9 Witkin, Cal. Procedure, supra, Appeal, §151, p. 216.) However, plaintiffs have not raised any issue on appeal as to the trial court's denial of their motion under section 473 to vacate the order of dismissal. Therefore, any issue that could have been raised has been waived. (Tiernan v. Trustees of Cal State University & Colleges (1982) 33 Cal.3d 211,216, fn. 4; Building etc. Assn. v. Richardson (1936) 6 Cal.2d 90, 102.) In addition, as discussed below, the order denying plaintiffs' motion to vacate the dismissal is void on its face. No purpose would be served by considering the merits of a void order on appeal.

E. No Appeal Lies from the September 24, 1998, Order Denying Plaintiffs' Reconsideration Motion

Plaintiffs purport to appeal from the September 24,1998, order denying their reconsideration motion. The reconsideration request was directed at an order sustaining a demurrer without leave to amend. An order sustaining a demurrer without leave to amend is not appealable. (I.J. Weinrot & Sons, Inc. v. Jackson, supra, 40 Cal.3d at p.331; Jackson v. Teachers Ins. Co. (1973) 30 Cal.App.3d 341,343.) When reconsideration is denied under these circumstances, that order is not appealable and the California Supreme Court has squarely so held. (I.J. Weinrot & Sons, Inc. v. Jackson, supra, 40 Cal.3d at p.331 ["If the original ruling is not final and appealable in its own right, then it is not a judgment and an order denying reconsideration cannot be appealable. "[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38,43-44 [].)' [Citation.]"].) Hence, the determination to deny reconsideration of the order sustaining the demurrer without leave to amend is not appealable given the holding of I.J. Weinrot & Sons, Inc. In addition, as discussed below, even if the order were appealable, it is void on its face, and no purpose would be served by considering the merits of a void order on appeal.

F. The Orders Denying Plaintiffs' Motions to Reconsider and to Vacate the Dismissal are Void

Defendant, Barney & Barney, LLC, contends the trial court had no jurisdiction to rule on plaintiffs' motions for reconsideration and to vacate the dismissal order. This is because an appeal from the order of dismissal was pending at the time of those rulings. We agree.

Subject to exceptions not applicable here,⁵ the perfecting of an appeal stays proceedings in the trial court on the judgment or order from which the appeal is taken. (1916, subd. (a).) The filing of a notice of appeal deprives the trial court of jurisdiction. The filing of a notice of appeal vests jurisdiction in the appellate court until issuance of the remittitur. (People v. Johnson (1992) 3 Cal.4th 1183, 1257; California State Auto. Assn. Inter-Ins. Bureau v. Jackson (1973) 9 Cal.3d 859,862, fn. 3; Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641; Andrisani v. Saugus Colony Limited (1992)8 Cal.App.4th 517,523; 9 Witkin, Cal. Procedure, supra, Appeal, § 21, pp.82-83.) As the Supreme Court has explained, "Thus, during the pendency of an appeal, the trial court loses jurisdiction to do anything in connection with the cause that may affect the judgment...." (People V. Johnson, supra, 3 Cal.4th at p.1257.) A duly perfected appeal divests the trial court of jurisdiction to vacate or amend

a judgment valid on its face. (Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc., supra, 43 Cal.App.4th at p.641.) An order or judgment entered in the absence of jurisdiction due to a pending appeal is void. (California State Auto. Assn.Inter-Ins. Bureau V. Jackson, supra, 9 Cal.3d at p.862, fn. 3; Dallman v. Dallman (1958) 164 Cal.App.2d 815, 817-818.)

In the present case, the first appeal from the July 24, 1998, dismissal order was commenced on September 21, 1998, and dismissed on December 15, 1998. The remittitur was issued on February 18, 1999. The trial court purported to rule on plaintiffs' motions for reconsideration and to vacate the dismissal on September 24, 1998, while the first appeal was pending. The orders denying those motions, entered while the trial court was without jurisdiction to act because of the pending appeal, are void on their face. (Sacks v. Superior Court (1948) 31 Cal.2d 537, 540; California State Auto. Assn. Inter- Ins. Bureau v. Jackson, supra, 9 Cal.3d at p.862, fn. 3; Andrisani v. Saugus Colony Limited, supra, 8 Cal.App.4th at p.523; Dallman v. Dallman, supra, 164 Cal.App.2d at pp.817-818; cf. Carlson v. Eassa (1997) 54 Cal.App.4th 684,696; Ruiz v. Ruiz (1980) 104 Cal.App.3d 374, 379.) Further, for us to rule on the merits of the trial court's order denying plaintiffs' motion to vacate the dismissal (an appealable order, as discussed above) would impart no validity to it. (Pioneer Land Co. v. Maddux (1895) 109 Cal. 633, 642; Hager v. Hager (1962)199 Cal.App.2d 259,261; Adohr Milk Farms, Inc. V. Love (1967) 255 Cal.App.2d 366, 371.) As the Supreme Court stated in Pioneer Land Co., "[T]he affirmance by an appellate court of a void judgment imparts to it no validity...." (Pioneer Land Co. v. Maddux, supra, 109 Cal. at p.642.) As the Court of Appeal held in Adohr Milk Farm:, Inc. v. Love, supra, 255 Cal.App.2d at page 371, "That a void order is appealable does not permit us to consider the appeal on its merits and to affirm [or reverse] the order if we were so disposed, because our affirmance [or reversal] would impart no validity and would be similarly void." No purpose would be served by considering the merits of a void order on appeal.

Ordinarily, we would affirm the order denying plaintiffs' motion to vacate the dismissal, an appealable order as to which plaintiffs raised no issue on appeal. However, as discussed above, that order is void on its face. Several decisions discuss whether the proper procedure is to affirm a void order or judgment or dismiss the appeal. (Adohr Milk Farm:, Inc. v. Love, supra, 255 Cal.App.2d at pp.371-372; Avery v. Associated Seed Growers, Inc. (1963)211 Cal.App.2d 613,630; Estate of Hewitt (1958)160 Cal.App.2d 584, 587-588; Petroleum Midway Co. v. Zahn (1944) 62 Cal.App.2d 645,652.) As noted above, in neither case would this court's ruling impart any validity to the appealable but void order. Therefore, we direct the trial court, on remand, to vacate its order denying plaintiffs' motion to vacate the dismissal. The trial court is then to enter a new order declining to rule on the motion as beyond its jurisdiction. In addition, on remand, either party may, of course, bring a motion on similar grounds asking the trial judge to vacate its order denying plaintiffs' reconsideration motion and make a new determination declining to rule on that request as beyond the jurisdiction of the court. Alternatively, the trial court may take such action on its own motion.

IV. DISPOSITION

The appeal from the order of dismissal is dismissed. The appeal from the notice of entry of judgment is dismissed. The appeal from the order denying plaintiffs' reconsideration motion is dismissed. On remand, the trial court is directed to vacate its order denying plaintiffs' motion to vacate the dismissal and enter a new order declining to rule on the motion as beyond the jurisdiction of the court. Defendants, California Compensation Insurance Company, Barney & Barney, LLC, and Glen Holter, are to recover their costs on appeal, jointly and severally, from plaintiffs, Mendez Trucking, Inc., Manual Mendez, and Maria Mendez.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

ARMSJRONG, J.

GODOY PEREZ, J.

_____________________

1 All further statutory references are to the Code of Civil Procedure unless otherwise noted.

2 All further references to a rule are to the California Rules of Court.

3 Section 581d states: "A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. [¶] 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 enter those judgments in the register of actions in the case."

4 At the September 24,1998, hearing in the trial court, counsel for defendant Barney & Barney objected that the court was without jurisdiction to rule on p1aintiffs' motions because a notice of appeal had been filed. The court responded: "Okay. I wou1d agree with you as far as an appeal being filed, either it was filed too soon; it was filed prematurely. You need to withdraw it, or - I cannot make a ruling on a motion for reconsideration. I would decline to hear it. If indeed you do have a notice of appeal pending, then go do your appeal. That's your recourse.1" Plaintiffs' counsel responded:

"Your Honor, just for the record, a notice for new trial, motion for reconsideration does not affect this court's jurisdiction, even if there is a notice of appeal on file, No.1; No.2, it was prematurely filed. If we want to go that route, I will stipulate on the record now that we'll withdraw the notice of appeal and refile it."

5 Two principal exceptions are a new trial request (Neff v. Ernst (1957) 48

Cal.2d 628,633-634; Weisenburg v. Molina (1976) 58 Cal.App.3d 478,486) and a

motion for judgment notwithstanding the verdict. (Foggy V. Ralph F. Clark &

Associates, Inc. (1987)192 Cal.App.3d 1204, 1213.)

OPINION: Mendez Trucking, Inc., v. California Compensation Insurance Co., 2^nd Civ. B126064