Filed 6/20/13 Fiorini v. Phusion Projects CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 Superi or 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., Gome s, J., and Franson, J.2 STATEMENT OF THE CASE AND FACTS Plaintiff and appellant Brett A. Fiorini (Fiorini) sued defendants and respondents Donaghy Sales, LLC (Donaghy), Phusion Pr ojects, LLC (Phusion), and City Brewing (City Brewing), after the death of Fiorini’ s son allegedly from ingesting Four Loko alcoholic/energy beverage. Following dismissa l of Fiorini’s complaint as to Donaghy on November 19, 2012, and Fiorini’s complain t as to Phusion on November 27, 2012, notices of entry of judgment as to defe ndants Donaghy and Ph usion 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 th e granting of City Brewing’s motion for judgment on the pleadi ngs. Fiorini filed the notice of appeal on April 2, 2013, within 60 days of judgment as to City Brewin g, 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 no tice 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 responde d claiming the arguments asserted by Donaghy and City Brewing in their motion for judgment on the plead ings 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 an d 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 itsel f as to its rulings re lative to Donaghy and

Phusion.”3 DISCUSSION

“It is settled that the rule that an appeal may not be taken from an ‘interlocutory’ judgment] does not apply when the case i nvolves multiple parties and a judgment is

entered which leaves no issue to be determined as to one party.” ( Justus v. Atchison (1977) 19 Cal.3d 564, 568.) In a multiparty action, if all i ssues are resolv ed 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, respectiv ely. 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 excep tion 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 wh en 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 judg ment was mailed on August 7, 1989. On August 4, 1989, Millsap moved to vacate the order on severa l grounds including conf usion 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 judgm ent as to FEC will re main in effect and that summary judgment was granted as to NC E. Judgment as to NCE was entered on December 7, 1989, along with an order denying Millsap’s pending motion to vacate.4 Millsap filed a notice of appeal on January 4, 1990, more th an 60 days after entry of judgment as to FCE, bu t 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 judgm ent was ‘incomplete, did not address the issues before the court, and contained a blatant and prejudicial falsehood which necessitated correcti on.’ These factors do not extend the time for filing. Millsap’s remedy, whic h she followed, was to file a motion to reconsider and a motion to vaca te. Such motions, however, do not dispose of the necessity of taking a timely appeal from the allegedly defective judgment or order; they me rely permit a party an extension of time in which to take that appeal. No r 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 “interlocutory” judgment] does not appl y when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party.’ ( Justus v. Atchison (1977) 19 Cal.3d 564, 568; overruled on other grounds in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171.) 2 ” Millsap 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 Phusi on’s favor there were no issues left to be determined

2 “Millsap may have been attempting to raise th e point that this exception to the one final judgment rule does not apply if the party in volved 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 ar e 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 v. Hale Constr. Co . (1970) 12 Cal.App.3d 227, 230, 90 Cal.Rptr. 557, in volving a surety and a principal.) This rule has no applicati on 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 an d NCE are not interdependent. Moreover, the court’s ruling specified that it was ba sed on an understanding that NCE was an independent contractor of FEC. Thus, the court did not rule on th e defenses shared by FEC and NCE.]”5 as to Donaghy and Phusion and the rights of Donaghy, Phusion, and City Brewing were not interdependent.

DISPOSITION The appeal is dismissed.