target="F067046M_files/props0002.xml">
Fiorini v. Phusion Products
Filed 7/8/13 Fiorini
v. Phusion Products CA5
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opinion has not been certified for publication or ordered published for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
IN AND FOR THE
FIFTH APPELLATE DISTRICT
BRETT A. FIORINI,
Plaintiff and Appellant,
v.
PHUSION PROJECTS, LLC et al.,
Defendants and
Respondents.
F067046
(Fresno Super. Ct. No. 11CECG03802)
BY THE COURT:
It is
ordered that the opinion filed herein on June 20, 2013, be
The
disposition on page 5 is deleted and the following inserted in its place:
DISPOSITION
“The appeal is dismissed as to
defendants Donaghy and Phusion only.â€
This modification changes the
judgment.
_____________________
Levy, A.P.J.
WE CONCUR:
_____________________
Gomes, J.
_____________________
Franson, J.
Filed
6/20/13 Fiorini v. Phusion Projects
CA5 (unmodified version)
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opinion has not been certified for publication or ordered published for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
BRETT A. FIORINI,
Plaintiff and Appellant,
v.
PHUSION PROJECTS, LLC
et al.,
Defendants and Respondents.
F067046
(Fresno Super. Ct. No. 11CECG03802)
O P I N I O N
THE COURT*
APPEAL from
a judgment of the Superior Court of Fresno County. Kristi C. Kapetan, Judge.
William L.
Schmidt for Plaintiff and Appellant.
No response
for Defendants and Respondents.
-ooOoo-
______________________
*Before Levy, A.P.J., Gomes, J., and Franson, J.
Plaintiff
and appellant Brett A. Fiorini (Fiorini) sued defendants and respondents
Donaghy Sales, LLC (Donaghy), Phusion Projects, LLC (Phusion), and City Brewing
(City Brewing), after the death of Fiorini’s son allegedly from ingesting Four
Loko alcoholic/energy beverage.
Following dismissal of Fiorini’s complaint as to Donaghy on November 19,
2012, and Fiorini’s complaint as to Phusion on November 27, 2012, notices of
entry of judgment as to defendants Donaghy and Phusion were filed on December 3
and 5, 2012. Rather than appeal from
these judgments, Fiorini waited until the court entered judgment on February
19, 2013, following the granting of City Brewing’s motion for judgment on the
pleadings. Fiorini filed the notice of
appeal on April 2, 2013, within 60 days of judgment as to City Brewing, but
more than 60 days of judgment as to Donaghy and Phusion.
This court issued an order
informing Fiorini that the court was considering dismissing the appeal on the
ground that the notice of appeal filed by him seeking review of the judgments
of dismissal as to Donaghy and Phusion was untimely. (See Cal. Rules of Court, rule 8.104.) Fiorini responded claiming the arguments
asserted by Donaghy and City Brewing in their motion for judgment on the
pleadings were interrelated, concerned the same legal issues and, that until
the judgment was entered as to City Brewing, there had been no “one final
judgment.†In appellant’s words, “the
orders and judgments as to Donaghy and Phusion should not be deemed to have
amounted to appealable judgments as the lower court was actively, at the time,
considering the arguments and legal issues which related to Donaghy and
Phusion’s demurrers. In considering City
Brewing’s motion for judgment on the pleadings, the lower court was free to,
and very well could have, reversed itself as to its rulings relative to Donaghy
and Phusion.â€
“It is settled that the rule that
an appeal may not be taken from an ‘interlocutory’ judgment] does not apply
when the case involves multiple parties and a judgment is entered which leaves
no issue to be determined as to one party.â€
(Justus v. Atchison (1977) 19
Cal.3d 564, 568.) In a multiparty
action, if all issues are resolved as to one party, then the judgment is final
as to that party. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437; see also 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 109, p. 174.) The trial court issued judgment as to Donaghy
and Phusion on November 19, 2012, and November 27, 2012, respectively. No issue was left to be decided as to those
two defendants. The judgment was final
as to those defendants at that time.
Fiorini claims that the exception
to the one final judgment rule does not apply if the party involved in the
judgment has a unity of interest with another party not yet finally
determined.
Millsap
v. Federal Express Co. (1991) 227 Cal.App.3d 425 provides some
guidance. In Millsap, Lisa Millsap was injured when her car was struck by an
automobile driven by Christopher Pence.
As relevant, Millsap brought an action against Pence and against North
Country Express (NCE) and Federal Express Corporation (FEC). NCE and FEC filed separate summary judgment
motions. The motions were heard
together, but on July 18, 1989, the court ordered summary judgment in favor of
FEC, but did not mention NEC. Judgment
was entered on the order on July 26, 1989, and notice of entry of the judgment
was mailed on August 7, 1989. On August
4, 1989, Millsap moved to vacate the order on several grounds including
confusion engendered by the fact the July 26 order ruled only on FEC’s
motion. On October 13, 1989, the court
ordered that the order granting summary judgment as to FEC will remain in
effect and that summary judgment was granted as to NCE. Judgment as to NCE was entered on December 7,
1989, along with an order denying Millsap’s pending motion to vacate. Millsap filed a notice of appeal on January
4, 1990, more than 60 days after entry of judgment as to FCE, but within 60
days of judgment as to NCE. The First
District Court of Appeal dismissed Millsap’s appeal as to FCE on the ground it
was untimely. The court explained:
“Millsap argues that
the July 26 judgment was ‘incomplete, did not address the issues before the
court, and contained a blatant and prejudicial falsehood which necessitated
correction.’ These factors do not extend
the time for filing. Millsap’s remedy, which she followed, was to file a motion
to reconsider and a motion to vacate.
Such motions, however, do not dispose of the necessity of taking a
timely appeal from the allegedly defective judgment or order; they merely
permit a party an extension of time in which to take that appeal. Nor is it relevant that the July 26 order,
which clearly entered judgment in favor of FEC, failed to mention NCE. ‘It is
settled that the rule [that an appeal may not be taken from an “interlocutoryâ€
judgment] does not apply when the case involves multiple parties and a judgment
is entered which leaves no issue to be determined as to one party.’ (
568; overruled on other grounds in Ochoa
v. Superior Court (1985) 39 Cal.3d 159, 171.)
v. Federal Express Co., supra,
227 Cal.App.3d at p. 430.)
Fiorini’s
notice of appeal is untimely since at the time judgment was entered in Donaghy
and Phusion’s favor there were no issues left to be determined as to Donaghy
and Phusion and the rights of Donaghy, Phusion, and City Brewing were not
interdependent.
DISPOSITION
The appeal
is dismissed.
name="_ftn1" title="">[2] “Millsap may have been attempting to raise the
point that this exception to the one final judgment rule does not apply if the
party involved in the purported judgment has such a unity of interests with
another party that its interests cannot be finally determined until those of
the uninvolved party are finally resolved.
In such a case the judgment purported to be final as to one party is
deemed no more than an interlocutory order.
(See Fleuret
227, 230, 90 Cal.Rptr. 557, involving a surety and a principal.) This rule has no application here, where
although one of two theories of defense asserted by FEC was identical to that
asserted by NCE (i.e., that Pence was an independent contractor), the rights of
FEC and NCE are not interdependent.
Moreover, the court’s ruling specified that it was based on an
understanding that NCE was an independent contractor of FEC. Thus, the court did not rule on the defenses
shared by FEC and NCE.]â€
