Cohen

This is a purported appeal “from the general demurrer to [the] cross-complaint of Equitable sustained without leave to amend. . .

We are wearying of “appeals” from clearly nonappealable orders. (See Code Civ. Proc., § 904.1; and cases collected in 9 Witkin, Cal. Procedure (3d ed. 1985) § 82, p. 105.) The case before us presents a particularly egregious example of this practice because the attorney for the “appellant” is a recidivist. In this same case, he attempted to appeal from an order granting a motion for summary judgment in favor of other cross-defendants sued by the Equitable Life Assurance Society (hereafter Equitable) even though such an order is not appealable unless judgment has been entered. (Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 115 [ 194 Cal.Rptr. 866 ].) In a footnote to our unreported opinion in that matter we pointed out to counsel an appeal will only lie from an appealable order or judgment. ; We proceeded to construe the order, to incorporate a judgment “in the interests of justice and to avoid delay.” (Cohen v. Equitable Life Assur. Soc. (1987) No. B013983.) Obviously, counsel did not get the message or he got the wrong message. Our patience…

I respectfully dissent. I would dismiss the purported appeal.

From a poorly drafted notice of appeal which recites that appeal is taken from the “the general demurrer . . . sustained without leave to amend,” it is apparent that at best, cross-complainant Equitable Life Assurance Society (Equitable) has “appealed” from a minute order sustaining demurrer without leave to amend which is a nonappealable order. An appeal lies only from a judgment of dismissal entered on an order sustaining demurrer. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579 [ 30 Cal.Rptr. 534 , 381 P.2d 390 ].) No such judgment was entered in the instant case. However, the majority has used an acceptable, although discretionary, method of “saving” the “appeal” by amending the nonappealable order to make it an appealable judgment of dismissal, and construing the noáce of appeal as applying to that judgment. (Taylor v. State Personnel Bd. (1980) 101 Cal.App.3d. 498, 501, fn. 1 [ 161 Cal.Rptr. 677 ].) I find nothing in the circumstances here justifying this procedure for resolution of an issue such as that raised in this purported appeal. Employing this kind of appellate challenge to the ruling sustaining demurrer…

Norton & Fairman and Robert L. Fairman for Cross-complainant and Appellant.

Loeb & Loeb, Richard L. Feller and Gerald P. Cunningham for Cross-defendant and Respondent.

OPINION

JOHNSON, J.

This is a purported appeal "from the general demurrer to [the] cross-complaint of Equitable sustained without leave to amend...."

(1) We are wearying of "appeals" from clearly nonappealable orders. (See Code Civ. Proc., § 904.1; and cases collected in 9 Witkin, Cal. Procedure (3d ed. 1985) § 82, p. 105.) The case before us presents a particularly egregious example of this practice because the attorney for the "appellant" is a recidivist. In this same case, he attempted to appeal from an order granting a motion for summary judgment in favor of other cross-defendants sued by the Equitable Life Assurance Society (hereafter Equitable) even though such an order is not appealable unless judgment has been entered. ( Dover v. Sadowinski (1983) 147 Cal. App.3d 113, 115 [ 194 Cal. Rptr. 866 ].) In a footnote to our unreported opinion in that matter we pointed out to counsel an appeal will only lie from an appealable order or judgment. We proceeded to construe the order to incorporate a judgment "in…