Kuang v. Sawyer

Filed 8/14/07 Kuang v. Sawyer CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Aurelio N. Munoz, Judge. Dismissed.

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The Law Corporation of Patrick Rick Lund, Patrick Rick Lund, Nader R. Ghosheh and Giavanna C. DePrima for Defendants and Appellants.

MacCarley & Rosen and Mark MacCarley for Plaintiffs and Respondents.

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Philip and Carolyn Sawyer appeal from a judgment entered on part of a complaint against them. Because the judgment did not dispose of the entire complaint or any part of the Sawyers cross-complaint, it is not final. We therefore dismiss the appeal.

BACKGROUND

Because the record on appeal contains none of the evidence that was introduced at trial, our summary of the facts is drawn entirely from the parties assertions in their pleadings and briefs.

The Sawyers own real property in Los Angeles. Plaintiffs Charles Kuang, Wayne Pemberton, Manuel Melgoza, Shiann Chen, Macario Becerra, and Oi Sau Moy (as trustee of the Oi Sau Moy Trust) own real property near the Sawyers property. Plaintiffs sued the Sawyers to quiet title to an easement located along an alley on the Sawyers property. Plaintiffs also sought an injunction requiring the Sawyers to remove a fence they had erected to block the easement, and prohibiting them from blocking it in the future. The Sawyers cross-complained against all plaintiffs, seeking to quiet title to the alley against plaintiffs claimed easement.

On November 21, 2005, after a bifurcated bench trial that appears to have lasted more than one week, the trial court entered judgment in favor of plaintiffs on part of their complaint. The judgment makes no reference to the Sawyers cross-complaint, and our review of the trial courts docket reveals that proceedings on the cross-complaint continued after the judgment was entered. Moreover, the judgment does not purport to resolve all of the claims in plaintiffs complaintit expressly reserves issues of costs and damages until such time that the (bifurcated) trial on the damages issue of the Complaint is heard by the Court.

DISCUSSION

The Sawyers have appealed from a judgment that does not purport to resolve (1) all of the claims in plaintiffs complaint, or (2) any of the claims in the Sawyers cross-complaint. [A]n appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as separate and independent from those remaining. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743; see also Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698 [unresolved cross-complaint renders judgment on complaint nonappealable]; Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 523-524 [judgment on bifurcated issues is not appealable if other issues remain to be tried].)

The fact that the judgment grants a permanent injunction does not affect our conclusion. Although subdivision (a)(6) of Code of Civil Procedure section 904.1 refers to an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, case law interprets that provision as applying only to pendente lite injunctions. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645-646, 649; see also Engle v. City of Oroville (1965) 238 Cal.App.2d 266, 269 [order granting injunction after bifurcated trial on equitable issues, when damages claims remained to be tried, was not appealable]; McCarty v. Macy & Co. (1957) 153 Cal.App.2d 837, 839-840 [similar].)

The judgment therefore is not appealable. We accordingly must dismiss the Sawyers appeal.

DISPOSITION

The appeal is dismissed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P. J. JACKSON, J.^*

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^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)