Opinion
B289432
04-02-2020
ARVIND SHANKAR, Plaintiff and Appellant, v. JEFFREY CHU, Defendant and Respondent.
Arvind Shankar, in pro. per., for Plaintiff and Appellant. Moon & Yang, Kane Moon and Allen Fegahli for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SC119634) APPEAL from an order of the Superior Court of Los Angeles County, Nancy L. Newman, Judge. Dismissed. Arvind Shankar, in pro. per., for Plaintiff and Appellant. Moon & Yang, Kane Moon and Allen Fegahli for Defendant and Respondent.
____________________
This appeal is one of several generated by a dispute that has lasted over a decade between appellant Arvind Shankar, M.D. and respondent Jeffrey Chu, M.D. We need not summarize the underlying facts of the dispute, however, as Shankar has failed to establish the appealability of the order he asks us to review. Accordingly, we dismiss his appeal.
Shankar appeals from the trial court's February 16, 2018 order granting Chu's motion for summary judgment on Shankar's complaint against Chu. In his opening brief to this court, Shankar challenges not just the summary judgment order, but numerous other orders as well, namely: (1) an April 2016 order expunging a lis pendens; (2) a September 2016 order and May 2016 order granting Chu's motions for judgment on the pleadings as to certain causes of action in the complaint; (3) a January 2017 order refusing to impose a stay in trial court proceedings pending a separate appeal; and (4) an April 2017 order denying Shankar's motion for summary adjudication.
Neither the summary judgment order from which Shankar directly appeals, nor any of the other orders he challenges in his opening brief are appealable. (See Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7; Campbell v. Jewish Com. for P. Service (1954) 125 Cal.App.2d 771, 772-773 (Campbell); Code Civ. Proc., § 405.39 [orders regarding motions to expunge a lis pendens].)
An appellant may nevertheless obtain review of an order regarding a motion for summary judgment, summary adjudication, or judgment on the pleadings, however, by appealing from the judgment rendered on the order. (See Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836; Campbell, supra, 125 Cal.App.2d at pp. 772-773.)
Accordingly, in a June 12, 2018 letter, this court instructed Shankar to provide an appealable judgment or, if no final judgment has been entered, to "show cause in writing, why the appeal should not be dismissed as being taken from a non-appealable order."
Shankar acknowledges in his written response that "no [j]udgment was actually entered by the trial court." Shankar further asks this Court to "deem[ ]" the trial court's order a final judgment, and/or that we order the trial court to enter a judgment nunc pro tunc and construe his notice of appeal as referring to that judgment. To support his request, Shankar notes that, in the trial court's order granting summary judgment, the court wrote that the "ruling [in that order] is dispositive of the complaint." Shankar cites authority for the proposition that, where an order "disposes of the entire action, the order 'may be amended so as to convert it into a judgment encompassing actual determinations of all remaining issues . . . and the notice of appeal may then be treated as premature but valid.' " (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 700, quoting Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740 (Morehart).)
Such authority does not automatically render a statement in a minute order that no further issues remain to be adjudicated the functional equivalent of a final judgment. Until a final judgment is issued on all issues as between the parties, "trial is not complete but is still in process of determination. . . . Until that time, the trier of the fact may change his mind." (Reimer v. Firpo (1949) 94 Cal.App.2d 798, 800.) Even when "an order has been made directing the entry of judgment, [a court] may order a different judgment to be entered." (Ibid.)
Moreover, even if the order on appeal reflects the trial court's final assessment of all issues regarding the complaint, the record does not clearly support that the order contains a final assessment of all claims between Chu and Shankar in this case or " ' "terminates the litigation between the parties." ' " (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) Chu filed a cross-complaint against Shankar and others. Although the parties seem to agree that Shankar is no longer a cross-defendant in that action, the docket in this matter does not appear to reflect any such dismissal or final adjudication of the cross-complaint as between Chu and Shankar. Until the court issues such final adjudication of all issues as between Chu and Shankar, there can be no final judgment regarding their dispute in this litigation. (Ibid. [a final judgment " ' "leaves nothing to be done but to enforce by execution what has been determined" ' "].) Until the court enters a final judgment on all claims between Shankar and Chu, we cannot consider the merits of the appeal.
Namely, Shankar has represented that Chu voluntarily dismissed the cross-complaint as against Shankar in its entirety, and Chu refers to another cross-defendant, Seong Wook "Simon" Hong, as "the only remaining cross-defendant" at the time the court entered a default judgment against Hong. The default judgment against Hong does not address whether Shankar was still a cross-defendant at that time, and the transcripts from the related default prove-up hearing were not provided on appeal.
This court has already once instructed Shankar on this point. In 2013, Shankar sought review of a non-appealable order in separate litigation. (Chu v. Shankar (Oct. 29, 2014, B251363) [nonpub. opn.].) In our unpublished opinion dismissing that appeal, we explained that "[b]ecause there [was] no final judgment in [the] action resolving all issues as to all parties" and "no final judgment as to Chu or Shankar either, the challenged order [was] not appealable as a postjudgment order" (as Shankar contended) or on any other basis. (Id. at p. 3.)
Only "[w]here [the] underlying policies [of the one final judgment rule] are not implicated" have "courts . . . recognized certain exceptions to [that rule]." (Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160, 1168.) That is not the case here. (See Morehart, supra, 7 Cal.4th at p. 741, fn. 9 [policies underlying one final judgment rule include judicial efficiency, judicial economy, and avoiding inconsistent rulings].) Accordingly, we dismiss the appeal.
DISPOSITION
The appeal from the trial court's order is dismissed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.