Lerner

The appellant Syril Lerner employed cross-defendant Philip S. Ehrlich, Sr. as her attorney in a divorce action. A dispute arose between them relating to the amount of fees due Ehrlich. Ehrlich assigned his claim to L. M. Carroll, who filed an action against Lerner. Lerner in turn filed a cross-complaint against Ehrlich, charging false representations and intent to deceive in connection with the agreement for fees. Ehrlich moved to strike the cross-complaint as sham and filed an affidavit in support of the motion. Lerner filed an affidavit in opposition to the motion to strike and she now appeals from the trial court’s order granting the motion.

We must first dispose of respondent’s contention that the trial court’s order is not appealable. As a general rule, where the parties to the complaint and cross-complaint are the same, an order granting or denying a motion to strike out a cross-complaint is not appealable, but the correctness of the order is reviewable on appeal from the final judgment. (Yandell v. City of Los Angeles, 214 Cal. 234, 235 [ 4 P.2d 947 ].) A different rule applies, however, where the parties to the complaint and cross-complaint are not the same. In such case…