Filed 6/21/22 Brokaw v. Morey and Upton CA4/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DENNIS BROKAW et al.,
Plaintiffs and Appellants, G061003
V. (Super. Ct. No. 30-2017-00897307)
MOREY AND UPTON, LLP, et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Fred W.
Slaughter, Judge. Dismissed.
Dahl Law Firm and Richard Arthur Dahl for Plaintiffs and Appellants.
Gaglione, Dolan & Kaplan and Robert T. Dolan for Defendants and
Respondents.
Dennis and Bonnie Brokaw (the Brokaws) appeal from the trial court's
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denial of their motion to reconsider a denial of their request to vacate Bonnie' s.
voluntary dismissal. We dismiss because we agree with the parties that no appealable
order is presented.
FACTS
The Brokaws filed the underlying lawsuit against Morey and Upton, LLP,
who represented them in an earlier lawsuit arising out of personal injuries sustained by
Dennis. In this lawsuit, Bonnie, through her counsel, filed a 2018 request to dismiss her
claim without prejudice, which the trial court clerk entered immediately.
In 2018 and 2021, respectively, Bonnie twice unsuccessfully moved to
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vacate her voluntary dismissal. The trial court also denied the Brokaws' subsequent
motion for reconsideration based on Code of Civil Procedure section 1008, subdivision
(a). (All further statutory references are to the Code of Civil Procedure.) Relevant here,
a notice of entry of the court's denial of the second motion to vacate was served on the
Brokaws on August 30, 2021, followed two months later by service of the notice of the
order denying reconsideration on November 5.
The Brokaws filed their notice of appeal on December 30, 2021. Both that
document and their subsequently filed civil case information statement only identified the
trial court's denial of their reconsideration motion as the order challenged on appeal. We
requested briefing on whether there is an appealable order before us. In response, the
Brokaws acknowledge no appealable order has been presented as Bonnie's voluntary
1 Because appellants share a surname, we refer to them by their first names to
avoid confusion. We intend no disrespect.
2
Because of the ground for our disposition, we neither specify which
Brokaw filed which motion nor consider any potential issues of standing to appeal.
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dismissal entered by the clerk does not qualify as an appealable judgment or order.
Based on their concession, the Brokaws contend they appealed prematurely and "request
leave of [this] court to file a [petition for w]rit of [m]andate." In the alternative, they
request we dismiss this appeal "without prejudice" so they may "either file an appeal
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after the [trial c]ourt enters a proper [sic] signed order or judgment."
DISCUSSION
Morey and Upton contend we should dismiss this appeal for lack of an
appealable order. They further assert arguendo that even with an appealable order,
appeal would be untimely. Although the alternative argument is correct,.4 the absence of
appealability is the more fundamental defect. We conclude future review consistent with
section 904.1 should not be precluded.
"An order denying a motion for reconsideration made pursuant to
subdivision (a) is not separately appealable. However, if the order that was the subject of
a motion for reconsideration is appealable, the denial of the motion for reconsideration is
reviewable as part of an appeal from that order." (§ 1008, subd. (g).)
Here, the order underlying appellants' motion for reconsideration-i.e.,
appellants' 2021 (second) motion to vacate Bonnie's voluntary dismissal-was not
appealable as there was no appealable judgment or order underlying it. (See Peltier v.
McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1815 ["clerk's entry of default is a
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We will not speculate on what circumstances the Brokaws contend would
warrant a "proper signed order." (See, e.g., Lee v. Kwong (2011) 193 Cal.App.4th 1275,
1281 ["arbitration is viewed as a trial" for § 581 dismissal purposes].)
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No calculation of deadlines would support a conclusion of timeliness. (See
Cal. Rules of Court, rule 8.104(a) [normal deadlines to appeal] and rule 8.108(e)
[extensions for motions for reconsideration].) We do not exercise our discretion to treat
the Brokaws' request for appellate review as a request for writ relief. (See Volkswagen of
America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701-702 & fn. 6.)
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ministerial act" and not an appealable Code of Civil Procedure section 58ld "order of
dismissal"]; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [motion to vacate
default may only be reviewed on appeal from default judgment].) We neither discern nor
have been advised of any dismissal judgment or order signed by the court. (See Powell v.
County of Orange (2011) 197 Cal.App.4th 1573, 1577-1578 [dismissal through minute
order not signed by court does not satisfy section 581d and therefore is not appealable].)
Because there is no appealable judgment or order before this court, dismissal is required.
(Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)
Finally, although an unqualified appeal dismissal will preclude future
appellate review(§ 913), we conclude our lack of jurisdiction under the circumstances
should not foreclose potential review of an appealable order or judgment. (See People v.
Adamson (1949) 33 Cal.2d 286, 289 ["Inasmuch as the purported appeal is from a
nonappealable order, jurisdiction of the cause remains in the superior court"].)
DISPOSITION
The appeal is dismissed. Respondents shall recover their costs on appeal.
O'LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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