Filed 2/16/22 Mendones v. Washington Hospital Healthcare System CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MARIDOL C. MENDONES,
Plaintiff and Appellant,
v. A162989
WASHINGTON HOSPITAL
(Alameda County
HEALTHCARE SYSTEM,
Super. Ct. No. HG19013225)
Defendant and Respondent.
By her July 2, 2021 notice of appeal, plaintiff and appellant
Maridol C. Mendones (Mendones) seeks to appeal from: (1) a February
1, 2021 “judgment of dismissal” entered after an October 21, 2020 order
sustaining a demurrer; and (2) a June 10, 2021 “order or judgment.”
The record on appeal contains three orders matching the dates
mentioned in the notice: (1) a signed October 21, 2020 order sustaining
a demurrer to the second amended complaint without and with leave to
amend; (2) an unsigned February 1, 2021 order dismissing the action
without prejudice; and (3) a signed June 10, 2021 order denying
Mendones’ motion for reconsideration of the earlier two orders. As we
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now explain, the appeal in this case must be dismissed as we lack
jurisdiction to review the orders.
BACKGROUND
In April 2019, Mendones filed a complaint against defendant
Washington Hospital Healthcare System (WHHS), seeking monetary
damages and other relief following the termination of her employment
as a registered nurse on May 16, 2018. After two demurrers, the trial
court granted leave to file a second amended complaint (SAC). In July
2020, Mendones filed her SAC for monetary damages based on six
causes of action: (1) “breach of contract”; (2) “wrongful termination”; (3)
“retaliation”; (4) “discrimination”; (5) “professional negligence”; and (6)
“defamation.” WHHS again filed a demurrer.
On October 21, 2020, the trial court issued a signed order
sustaining the demurrer to the SAC (a) without leave to amend the
causes of action for breach of contract, wrongful termination,
retaliation, and discrimination; (b) with leave to amend the cause of
action for professional negligence; and (c) with leave to amend the
cause of action for defamation, except that the demurrer was sustained
without leave to amend as to an allegation that WHHS purportedly
made defamatory comments to the Board of Registered Nursing. The
court ordered Mendones to file a third amended complaint (TAC)
including only the fifth (professional negligence) and sixth (defamation)
causes of action “within 10 court days of the publication of this order.”
The court clerk mailed this order to the parties on November 13, 2020.
When Mendones failed to timely file a TAC, WHHS moved ex
parte to dismiss the action; in response, Mendones filed her TAC. On
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January 8, 2021, 1 the court denied WHHS’s ex parte motion to dismiss
without prejudice and noted the “matter” would be resolved at a
scheduled case management conference set for February 1. Following
that conference, the court dismissed the case without prejudice and
without further comment. The February 1 order of dismissal was not
signed by the trial judge. On March 25, WHHS served Mendones with
notice of entry of the February 1 order of dismissal.
On April 6, Mendones filed a single-page document titled “Notice
on Motion for Reconsideration; Motion to Set Aside Judgment and
Motion to Stay.” The body of the document contained only the following
statement: “PLEASE TAKE NOTICE THAT on May 27, 2021 at
Superior Court of California, County of Alameda, as the matter may be
heard in Department 22 of the above-entitled Court via virtual
conference video and conference call.”
A month later, on May 4, Mendones filed a multipage document
titled “Motion for Reconsideration re: To Revoke Order Sustaining
Demurrer, or Alternatively, to Modify the Order With Leave to Amend
[CCP 1008 (a)] And Accept Third Amended Complaint: Memorandum of
Points and Authorities.” After a May 27 hearing, the court issued a
signed June 10 order denying the motion for “reconsideration” as
untimely and without merit. The court clerk mailed the June 10 order
to the parties on June 23. Mendones filed her notice of appeal on July
2.
1 Unless otherwise noted, all future dates were in 2021.
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DISCUSSION
“ ‘A reviewing court has jurisdiction over a direct appeal only
when there is (1) an appealable order or (2) an appealable judgment.’
[Citation.] Moreover, ‘the right to appeal is strictly statutory, and a
judgment or order is not appealable unless made so by statute.’
[Citation.]” (Warwick California Corp. v. Applied Underwriters, Inc.
(2020) 44 Cal.App.5th 67, 72 (Warwick California).) Hence, “ ‘ “[a]n
attempt to appeal from a nonappealable order does not give this court
jurisdiction or authority to review it.” ’ [Citation.] Whether or not the
opposing party makes a jurisdictional objection, ‘[a] reviewing court
must raise the issue on its own initiative whenever a doubt exists as to
whether the trial court has entered a final judgment or other order or
judgment made appealable by Code of Civil Procedure section 904.1.’ ”
(Warwick California, supra, at p. 72.)
Mendones presents various arguments challenging the demurrer
order. She presents no separate argument regarding the dismissal
order, but argues that, if the demurrer order is reversed, then the
dismissal order must also be reversed.
An order sustaining a demurrer with or without leave to amend
is not separately appealable, but may only be reviewed on an appeal
from a valid order or judgment of dismissal for which a timely notice of
appeal has been filed. (See Vibert v. Berger (1966) 64 Cal.2d 65, 67-68;
Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 425.) We are
without jurisdiction to review the demurrer order, however, as the
record on appeal contains only an unsigned order of dismissal, which is
not a valid judgment of dismissal.
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The “second paragraph of section 581d [of the Code of Civil
Procedure] states: ‘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 order that is not signed by the trial
court does not qualify as a judgment of dismissal under section 581d.”
(Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578
(Powell); see also Jordan v. Malone (1992) 5 Cal.App.4th 18, 22
(Jordan) [appellate court did not have to alert plaintiff to defect in
record before dismissing the appeal where plaintiff admitted no “formal
judgment” was entered prior to the filing of a notice of appeal].) The
consequence of the lack of a dismissal order signed by the court is that
“there is no final judgment that might serve as a basis for appellate
jurisdiction.” (Powell, supra, at p. 1578.) 2 While Mendones is
representing herself, the “ultimate responsibility” rests with her as the
appealing party to ensure that an appealable order or judgment has
been entered in order to perfect her appeal. (Jordan, supra, at p. 21.)
Because no appealable order or judgment of dismissal has been entered
in this case, the appeal from the dismissal order is premature and must
be dismissed.
2 We recognize that as an appellate court we have the “ ‘discretion
to treat a purported appeal from a nonappealable order as a petition for
writ of mandate,’ ” but we exercise that power “ ‘only in unusual
circumstances,’ ” which are not present here. (Williams v. Impax
Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072 [“more is
required than just a colorable dispute about an order’s appealability to
create unusual circumstances justifying the exercise of our discretion to
treat an appeal as a writ petition”].)
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We must also dismiss the appeal from the order denying the
motion for reconsideration made pursuant to Code of Civil Procedure
section 1008, subdivision (a), as such an order “is not separately
appealable.” (Id., subd. (g).) While an order denying reconsideration is
reviewable as part of an appeal from an appealable order that is the
subject of the motion for reconsideration (ibid.), the demurrer order and
dismissal order are not appealable orders.
DISPOSITION
The appeal is dismissed. Each party shall bear their own costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) In the event a
subsequent appeal is taken from a properly appealable order or
judgment of dismissal, the parties may request that this court take
judicial notice of the record and briefing on file herein.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
Mendones v. Washington Hospital Healthcare System/A162989
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