Jones v. Salameh





Filed 9/7/11 Jones v. Salameh CA2/24




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

DAN JONES, Plaintiff and Appellant, v. CAROLYN SALAMEH, Defendant and Respondent.

B222507 (Los Angeles County Super. Ct. No. NC052063) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:*

It is ordered that the opinion filed herein on August 19, 2011, be modified as follows:
On page 5, at the end of the last full paragraph before Disposition, after the sentence “We therefore conclude that the appeal must be dismissed for lack of an appealable judgment or order,” add as footnote 3 the following footnote:
³ Despite receiving notice and filing a request for 30 minutes, Jones did not appear on the day scheduled for oral argument. For the first time, in his petition for rehearing, he cited Eichenbaum v. Alon (2003) 106 Cal.App.4th 967 for the proposition that an appeal of a sanction order of less than $5,000 following the voluntary dismissal of the main action is authorized by statute. The Eichenbaum court acknowledged that section 904.1, subdivision (b), which authorizes appeals of sanction orders of $5,000 or less, “speaks of an appeal after entry of final judgment.” (Id. at p. 974.) Nonetheless, it concluded that the appellants were entitled to appellate review because the policy underlying the statute “of deferring appellate review of a lesser sanctions order to the conclusion of the case in the trial court[] is satisfied once the action has been voluntarily dismissed with prejudice.” (Ibid.) Although the panel recognized that section 904.1, subdivision (b) allows for an appeal of a sanction order such as the one at issue here “after entry of final judgment in the main action,” it did not address the cases that make it plain that a voluntary dismissal under section 581, subdivision (b)(1) is not a final judgment. For that reason, we decline to follow Eichenbaum.

There is no change in the judgment.

The petition for rehearing is denied.



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* WILLHITE, Acting P. J. MANELLA, J. SUZUKAWA, J.




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