Murray v. Solanki
Filed 9/7/06 Murray v. Solanki CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
| JAMES MURRAY, Plaintiff and Respondent, v. PRAFULL SOLANKI et al., Defendants and Appellants. | B181478 (Los Angeles County Super. Ct. No. BC307893) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard C. Hubbell, Judge. Dismissed.
Frank A. Weiser for Defendants and Appellants.
No appearance for Plaintiff and Respondent.
________________
On December 17, 2003, James Murray sued the El Blanco Motel, Michael Calloway and Calloway Security Services, and Doe defendants, bringing causes of action for negligence, assault and battery, and false imprisonment. He alleged that while he was a resident of the motel, he was attacked by Michael Calloway and Calloway Security Services, who were employed by the motel. The motel was served with the summons and complaint.
In May 2004, Murray moved for entry of default as to all defendants, seeking $4,500 in special damages and $100,000 in general damages. In July 2004, the court entered judgment against all defendants in the amount of $50,000.
On October 15, 2004, a notice of appeal was filed by "Prafull Solanki and Madhu Solanki, dba El Blanco Motel, erroneously sued as Defendant El Blanco Motel." They did not timely file the record, and we dismissed the appeal.
However, on February 18, 2005, a new notice of appeal was filed, this time by "Prafull Solanki, Madhu Solanki, Cal Solanki, Nilesh Solanki dba El Blanco Motel, erroneously sued as Defendant El Blanco Motel." Those appellants filed a brief, contending that the El Blanco Motel is their dba and that they were erroneously sued as El Blanco Motel. In reliance on Earl W. Schott, Inc. v. Kalar (1993) 20 Cal.App.4th 943, they contended that the judgment must be reversed because El Blanco Motel was not named in its correct legal capacity. Neither Prafull Solanki, Madhu Solanki, Cal Solanki, nor Nilesh Solanki were named in the complaint, and nothing in the record on appeal established their relationship to the El Blanco Motel.
On June 22, 2006, we issued an order to show cause re: dismissal of the appeal noticed on February 18, 2005. We wrote: "On October 15, 2004, a notice of appeal . . . was filed by 'Prafull Solanki and Madhu Solanki, dba El Blanco Motel, erroneously sued as Defendant El Blanco Motel.' On December 6, 2004, this Court found that appellants were in default (Cal. Rules of Court, rule 8, subd. (b)(1)) and dismissed the appeal. We ordered 'This order becomes final in 30 days and thereafter is not subject to rehearing or modification. This time cannot be extended. [Cal. Rules of Court, rule 24(b)]. Any party desiring reinstatement must file a motion within 15 days of the date of this order.' No motion was filed, and on February 9, we issued a remittitur to the Superior Court, certifying that the order dismissing the appeal had become final. The order of dismissal was binding on the El Blanco Motel, the Solankis' dba, and all the Solankis claiming to be operating the motel under the fictitious name. (See Pinkerton's Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1347-1349.) [¶] It appears that the appeal must be dismissed. A party may not file a second notice of appeal in the same action after the court has ordered the dismissal of an earlier notice of appeal."
Prafull Solanki, Madhu Solanki, Cal Solanki, Nilesh Solanki replied to the OSC. Prafull Solanki and Madhu Solanki asserted that they hold legal title to the El Blanco Motel and are the parties listed on the fictitious business name statement for the El Blanco Motel, and argued that their appeal should be allowed because their second notice of appeal was timely and because the first dismissal was not due to a lack of standing or failure to timely file, or some other point on the merits.
Cal Solanki and Nilesh Solanki asserted that they are the children of Prafull Solanki and Madhu Solanki, and that their appeal should not be dismissed because they "have a beneficial interest in the motel and claim to be legally aggrieved by the . . . judgment."
We do not see that either Cal Solanki or Nilesh Solanki has standing to appeal. While there are exceptions to the rule that only aggrieved parties may appeal (Code Civ. Proc. § 902), to be sufficiently aggrieved to qualify for appeal standing, a person's rights or interests must be injuriously affected by the judgment or order in a manner that is immediate, pecuniary, and substantial. A nominal or remote consequence of the judgment will not suffice. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) Children's interest in their parents' financial well-being is not enough to confer standing.
Nor do we see that Prafull Solanki and Madhu Solanki may now appeal. Our dismissal of their appeal was for failure to procure the record, pursuant to California Rules of Court, rule 8, subd. (b), which provides for dismissal. Our order was on its own terms final in February 2005. Time for reinstatement of the appeal is long past.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
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