Dawson v. City of Fresno
Filed 5/20/13
Dawson v. City of Fresno CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
DAVID DAWSON, as Trustee, etc.,
Plaintiff and
Appellant,
v.
CITY OF FRESNO,
Defendant and
Respondent.
F066234
(Super.
Ct. No. 12CECG00761)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Debra J. Kazanjian, Judge.
David
Dawson, in pro. per., for Plaintiff and Appellant.
No
appearance for Defendant and Respondent.
-ooOoo-
Appellant,
David Dawson, as Trustee in pro. per., filed a Petition for Writ of Mandamus
and Order to Show Cause in the Fresno County Superior Court naming as defendant
City of Fresno. The petition concerned
the issuance of various administrative citations to appellant regarding
violations of the City of Fresno Municipal Code. The City of Fresno filed an answer and a
demurrer. On September 11, 2012, the
superior court sustained the demurrer without leave to amend. Appellant filed a notice of appeal from the
order sustaining the demurrer without leave to amend on November 7, 2012. According to the Fresno County Superior Court
docket, no final judgment has been entered.
This court issued a briefing order
granting appellant time to explain why this court should not dismiss his appeal
for lack of a judgment or appealable order.
Appellant submitted a letter brief
arguing the merits of the appeal. The
letter brief failed to address the issue of appealability.
DISCUSSION
An order sustaining a demurrer,
whether with or without leave to amend, is not appealable; appeal is proper
only after entry of a dismissal on such an order. (Sisemore
v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
The appeal in the above entitled
action is dismissed on the ground appellant attempts to appeal from an order
sustaining a demurrer without leave to amend.
Such an order is not appealable and this court declines to deem the
order to incorporate a judgment of
dismissal. Appeal is proper only
after entry of a judgment of dismissal.
(Sisemore v. Master Financial,
Inc., supra, 151 Cal.App.4th at p. 1396.)
DISPOSITION
The appeal in the above entitled
action is dismissed as taken from a nonappealable order. Appellant’s remedy is to secure a final
judgment and to file a timely notice of appeal from the judgment.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Cornell, J. and Kane, J.
