Whitney's at the Beach v. Superior Court

Petitioner, following the denial of its motion for summary judgment in an action pending in respondent court, seeks a peremptory writ of mandate ordering that court to dismiss the complaint and to enter summary judgment for petitioner. It is concluded that petitioner is entitled to seek review of the trial court’s denial in proceedings of this nature, and that on the merits it is entitled to the peremptory writ which it seeks.

Propriety of the Writ of Mandamus

An order denying a motion for summary judgment is not appealable. “A judgment entered when a motion to strike the answer or dismiss the complaint is granted has all the qualities of a final judgment for thereby the proceeding is brought to an end; and except as it may be affected by appellate review the case is concluded and no further proceedings may be had. But if a motion to strike the answer or dismiss the complaint be denied, then the case goes forward to trial and ultimate judgment on the merits; such an order of denial possesses none of the attributes of a final judgment, nor is it one of the orders expressly made appealable by Code of Civil Procedure, section 963.” (Nevada Constructors, Inc. v. Mariposa…