Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 08C0006 James LaPorte Judge.
Daniel N. Bailey and Marlene Bailey, in pro per.; and Telep Law and Desiree Telep for Defendants and Appellants.
McCormick, Barstow, Sheppard, Wayte & Carruth, William H. Littlewood and Nicholas C. Miller for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendants and appellants Daniel N. Bailey, Marlene Bailey, and The Bailey Family Trust UTD 9/13/04 (the Bailey defendants) attempt to appeal from a Kings County Superior Court order granting summary adjudication in favor of plaintiff and respondent SMS Hanford, LLC (SMS Hanford) on SMS Hanford’s second cause of action for “Breach of Continuing Guaranty.” The Bailey defendants contend that the court erred in granting the motion. SMS Hanford has moved to dismiss the appeal, contending that we have no jurisdiction to hear it because there is no final judgment and, as a result, the Bailey defendants are attempting to appeal from a nonappealable order. As we shall explain, SMS Hanford is correct. The appeal is dismissed.
PROCEDURAL AND FACTUAL HISTORY
SMS Hanford filed this action against Hanford Montecito Ranch, LLC (HMR), and the Bailey defendants. The first cause of action is directed at HMR only and seeks “Judicial Foreclosure of Deed of Trust and Deficiency Judgment.” It alleges that SMS Hanford loaned $3.75 million to HMR, and that the loan is evidenced by a loan agreement and a promissory note secured by a deed of trust on a parcel of unimproved real property located on 14th Avenue in Hanford, California. It alleges that HMR defaulted on the loan, and that SMS Hanford seeks judicial foreclosure of its lien on the property under the note and trust deed, and “a judgment for the full amounts owing on the Note or any deficiency that may result after judicial foreclosure of the properties.” It further alleges that, with interest and late charges, HMR owed $4,038,750.50 to SMS Hanford at the time of the filing of the complaint. The second cause of action is against the Bailey defendants for “Breach of Continuing Guaranty.” It alleges that the Bailey defendants guaranteed and promised to pay to SMS Hanford any and all indebtedness of HMR to SMS Hanford.
SMS Hanford moved for summary adjudication of its second cause of action against the alleged guarantors, the Bailey defendants. The court held two hearings and later issued its order granting the motion. The order states in pertinent part:
“4. [SMS Hanford] is hereby awarded damages on the Second Cause of Action in the amount of $4,932,832.49, inclusive of outstanding [principal], accrued interest and late charges, which amount was calculated as of February 13, 2009. [SMS Hanford] is hereby further awarded interest pursuant to the terms of the Guaranty at a rate of eighteen percent (18%) per annum on the principal due and owing under the Guaranty, which is calculated at a daily rate of $1,849.31 per day from February 13, 2009, through the date of entry of final judgment (unless paid sooner by [the Bailey defendants]). [SMS Hanford] is hereby further awarded post judgment interest at a rate of ten percent (10%) per annum on the final judgment amount from the date of entry of that judgment until paid.
“5. The final judgment in this matter shall be made subject to [the Bailey defendants’] right to offset provided for under California Civil Code Section 2810.”
DISCUSSION
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) If the judgment or order appealed from is not appealable, “it is the duty of the court … to dismiss the appeal.” (Supple v. City of Los Angeles (1988) 201 Cal.App.3d 1004, 1009, disapproved on another ground in Jennings v. Marralle (1994) 8 Cal.4th 121, 129, fn. 5; see also Collins v. Corse (1936) 8 Cal.2d 123, 124.) “A trial court’s order is appealable when it is made so by statute.” (Griset v. Fair Political Practices Com., supra, at p. 696.) “(T)he appellate procedure is entirely statutory and subject to complete legislative control.” (Trede v. Superior Court (1943) 21 Cal.2d 630, 634.) “(A) party possesses no right of appeal except as provided by statute.…” (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78; in accord, see also California Casualty Ins. Co. v. Municipal Court (1998) 66 Cal.App.4th 1410, 1412, and authorities therein cited, and this court’s decision in Jordan v. Malone (1992) 5 Cal.App.4th 18.)
Code of Civil Procedure section 437c pertains to summary judgment and summary adjudication. Subdivision (m)(1) provides that, “[a] summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ.” When a court issues an order granting summary judgment, an appeal may be taken from the judgment. (Modica v. Merin (1991) 234 Cal.App.3d 1072.) “(A)ny order pursuant to this section, except the entry of summary judgment” (Code Civ. Proc., §437c, subd. (m)(1)), necessarily includes any order granting or denying a motion for summary adjudication. Neither Code of Civil Procedure section 437c nor any other statute, however, provides for an appeal from an order granting summary adjudication. Thus, “[a]n order granting … summary adjudication … is not an appealable order.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.)
The Bailey defendants argue that SMS Hanford “foreclosed on the property” and “dismissed its first cause of action so the case is over.…” The Bailey defendants appear to contend that SMS Hanford’s purported dismissal of its first cause of action transformed the court’s earlier order granting summary adjudication into a final judgment, and that therefore this is an appeal from a final judgment. “An appeal … may be taken … [¶] (1) From a judgment, except … an interlocutory judgment.…” (Code Civ. Proc., §904.1, subd. (a).) This is known as “the one final judgment rule.” (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740.) The flaw in the Bailey defendants’ argument is that, even though only the second cause of action (and not the first) pertains to them, the court’s order granting summary adjudication does not purport to be a final judgment and does not determine the amount, if any, of any ultimate judgment to be entered in favor of SMS Hanford and against the Bailey defendants. The order, by its very terms, states that, “(t)he final judgment in this matter shall be made subject to the Guarantor Defendants’ right to offset provided for under California Civil Code Section 2810.” There being no final judgment, the purported appeal from the court’s September 3, 2009, order granting summary adjudication must be dismissed. (Supple v. City of Los Angeles, supra, 201 Cal.App.3d at p. 1009; Collins v. Corse, supra, 8 Cal.2d at p. 124.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: Hill, P.J., Poochigian, J.