Marriage of DiCostanzo
Filed 2/5/10 Marriage of DiCostanzo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of DEBBERA and JAY DiCOSTANZO | |
DEBBERA DiCOSTANZO, Appellant, v. JOHN A. DiCOSTANZO, individually and as Trustee, etc., et al., Respondents. | E047875 (Super.Ct.No. RID198282) OPINION |
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Dismissed.
Debbera DiCostanzo, in pro. per., for Appellant.
Wildish & Nialis, Mark A. Nialis and N. Ramsey Barcik for Respondent John A. DiConstanzo.
No appearance for Respondent Jay DiConstanzo.
Debbera DiCostanzo appeals from an order ruling that the John A. DiCostanzo Trust held title to certain property and that she had no interest in that property. When we first reviewed the record, it appeared to us that this was not an appealable order. We asked Debbera to submit a letter brief addressing the appealability issue. We now conclude that the order is not appealable and hence that this appeal must be dismissed.
I
FACTUAL AND PROCEDURAL BACKGROUND
In January 2003, in connection with their pending marital dissolution proceeding, Debbera filed a complaint against Jay DiCostanzo. The complaint also named as a defendant Jays father, John A. DiCostanzo (both individually and as trustee of the John A. DiCostanzo Trust). It alleged that Debbera and Jay lived in a house in Corona paid for by John and held in Johns name. Although the complaint asserted 10 causes of action, it appears that each of those causes of action hinged on whether John had agreed to sell the house to Debbera and Jay or was merely renting it to them.
In April 2003, John filed a cross-complaint against Debbera. It had no proof of service.[1] However, in December 2003, John filed an amendment to the cross-complaint, substituting Jay as a Doe defendant, which was served on Debberas then-attorneys. It does not appear that Debbera ever filed an answer to the cross-complaint.
In August 2008, Judge Gary B. Tranbarger ruled (as a matter of res judicata) that Debbera had no valid preseparation community property claim against John that relates to this residence. However, he specifically indicated that his ruling was not dispositive of any postseparation separate property tort or contract claim that Debbera might have against John. He set a hearing for September 10, 2008, before Judge Becky L. Dugan, to clarify . . . [] . . . [] . . . what those claims are and what they arent.
On September 9, 2008, Debbera filed an amended complaint.
On September 10, 2008, Judge Dugan agreed with Judge Tranbargers ruling. However, she gave Debbera leave to file her amended complaint, stating, Ill file your complaint here for whatever its worth. Im not making any rulings on it today.
On January 5, 2009, Judge Tranbarger entered a formal written order quieting title to the house in John and ruling that Debbera had no interest in it. This is the order from which Debbera has appealed.
II
DISCUSSION
The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. [Citations.] A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citation.] (Harrington-Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494.)
Under the basic theory of the one final judgment rule . . . , orders are appealable only when expressly made appealable by statute . . . , or when they are in effect final judgments . . . . [Citation.] (County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1344.) A judgment that disposes of fewer than all the causes of action framed by the complaint is not final in the fundamental sense as to any parties between whom another cause of action remains pending. [Citation.] (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307.)
We recognize that [i]n determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable . . . [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative. . . . [Citations.] (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) Nevertheless, it is significant that the order appealed from does not have any of the usual indicia of a final judgment. It is entitled, in pertinent part, Order Dismissing Real Property Claims (capitalization omitted); it is not entitled Judgment. It did not award costs to either side.
Even more important, the trial court never explicitly decided whether the order did or did not adjudicate all of the claims in the original complaint. Quite the contrary, Judge Tranbarger indicated that he was leaving that question open, for Judge Dugan to decide. Judge Dugan, however, never decided it. Instead, she allowed Debbera to file an amended complaint. The trial court also has never entered any judgment explicitly adjudicating any of the claims in the amended complaint, which remains pending. Moreover, it appears that the amended complaint asserted at least some claims that arose postseparation and did not relate to the house.
Debbera has filed a letter brief stating that she voluntarily dismisses her amended complaint. This is ineffective. If she wishes to dismiss her amended complaint, she must do so in the trial court. We express no opinion on the effect (if any) that such a voluntary dismissal might have on her ability to file and to litigate a new appeal. (But see Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343 [Fourth Dist., Div. Two].)
Johns cross-complaint also remains pending. [A] judgment which resolves a complaint but does not resolve a cross-complaint pending between the same parties, is not final and not appealable, even if the complaint has been fully adjudicated. [Citations.] (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 133.) Where a complaint and cross-complaint involving the same parties have been filed, there is no final, appealable judgment until both have been resolved. [Citation.] [Citation.] Judgment rendered on a complaint alone, unaccompanied by judgment on a pending cross-complaint, is not a final judgment, and appeal from it may be dismissed on motion. [Citations.] [Citations.] (Id. at p. 132.)
Debbera claims that the cross-complaint was never properly served on her. Nevertheless, it remains on file, and the trial court has never entered any order dismissing or otherwise adjudicating it.
Finally, in her letter brief, Debbera asks us to treat the appeal as a writ petition. Though we . . . have power to treat [a] purported appeal as a petition for writ of mandate, we should not exercise that power except under unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) There are no such unusual circumstances here. Debbera has an adequate remedy in an appeal from a final judgment. (See In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1434-1435.)
III
DISPOSITION
For the reasons stated, the appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
GAUT
J.
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[1] The cross-complaint has not been included in the appellate record; however, on our own motion, we have taken judicial notice of the superior court files.
