Filed 5/12/20 Brown v. Courtyard Partners-Palm Springs CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

JAMIESON BROWN,

Plaintiff and Appellant,

v.

COURTYARD PARTNERS-PALM SPRINGS, L.P. et al.,

Defendants and Respondents.

E071958

(Super.Ct.No. PSC1405424)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Dismissed.

The Law Offices of Francisco Javier Aldana and Francisco Javier Aldana, for Plaintiff and Appellant.

Serbin & Carmeli and Michele Carmeli, for Defendant and Respondent.

I.

INTRODUCTION

Plaintiff and appellant, Jamieson Brown, asserted 14 causes of action against defendants and respondents, Courtyard Partners—Palm Springs, L.P. and various individuals (collectively, defendants). After the trial court sustained defendants’ demurrer to all 14 claims without leave to amend, it dismissed the case and entered judgment awarding defendants about $2,500 for costs associated with the demurrer.

In a prior appeal, we affirmed the judgment, but also held Brown could not appeal the trial court’s demurrer order because there was no final judgment and the order was non-appealable. Years later, at Brown’s request, the trial court entered a final judgment and dismissed Brown’s entire case based on its prior order sustaining defendants’ demurrer without leave to amend.

Brown appealed, but subsequently moved to dismiss the appeal. We exercise our discretion to dismiss the appeal without reaching the merits.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Appeal
B.
In October 2014, Brown filed a complaint alleging 14 causes of action against defendants, the landlord and its property managers. On December 2, 2013, Brown had leased a two-bedroom apartment. Brown alleged that, beginning in Apri12014, he realized the air conditioning was not functioning properly and the apartment could not be cooled below 88 degrees despite of the landlord’s repair efforts.

On October 2, 2014, Brown was notified of a rent increase from $895 monthly to $990 or $1,050 monthly, effective December 1, 2014. In October 2014, Brown and defendants had numerous exchanges about the proposed rent increase and the ongoing air conditioning problems. On October 14, 2014, Brown filed his complaint seeking damages for breach of a written lease, breach of implied warranties, breach of the implied covenant of good faith and fair dealing, nuisance, unfair business practices, conspiracy, trespass, invasion of privacy, abuse of process, false advertising, declaratory and injunctive relief, and appointment of a receiver.

Defendants demurred to the complaint for failure to state claim. In particular, they asserted that lack of air conditioning does not violate housing codes or render the premises unfit for use.

The parties stipulated to continue the demurrer hearing date from December 2014 to January 2015. Brown did not file opposition and did not appear at the January 2015 hearing. Hence the trial court sustained the demurrer without leave to amend on January 21, 2015. A notice of ruling was filed on January 22, 2015. According to the register of actions, on January 27, 2015, the court corrected, nunc pro tunc, the minute order of January 21, 2015, by dismissing defendants with prejudice and giving Brown notice by mail.

On January 22, 2015, defendants filed a memorandum of costs totaling $2,508.98, which was served on Brown by mail. On January 26, 2015, Brown filed a notice of related case, PSC1406636. The record does not show that Brown ever responded to the memorandum of costs.

On February 13, 2015, defendants served Brown by mail with a proposed judgment, including costs of $2,508.98. On February 20, 2015, the court entered the judgment in favor of defendants, including the requested costs. Brown filed a notice of appeal of the judgment on March 30, 2015.

The appeal “proceed[ed] only as to the February 20, 2015, judgment awarding costs” because the trial court’s order sustaining defendants’ demurrer was not appealable. Further, the trial court’s February 20, 2015 judgment—the only judgment in the matter—was “not a judgment of dismissal of the underlying action,” but was “merely a judgment for costs and is properly appealed only as such.” In July 2016, we affirmed the trial court’s judgment awarding costs to defendants.

C. Current Appeal
D.
Over two years later, in September 2018, Brown moved the trial court for, among other things, a signed order of dismissal and a statement of decision regarding its order sustaining defendants’ demurrer. Brown asked the trial court to enter an order dismissing his case “to facilitate the next appeal” because, in his view, “[t]he demurrer ruling need[ed] to be reviewed” by this court. Brown also requested that the trial court correct the name of an incorrectly named defendant in the trial court’s records.

The next day, the assigned judge, the Honorable David M. Chapman, recused himself from the matter without explanation. After reassignment, the trial court granted Brown’s requests in part, explaining in a minute order that it “need[ed] to resolve the case status and dismiss the action in light of the ruling on demurrer.” The trial court denied Brown’s request for a statement of decision, but entered a written order granting his motion, stating that the action was “dismissed with prejudice, based on the rulings of the court . . . sustaining the demurrer of defendants to the complaint without leave to amend.”

Brown appeals (1) the trial court’s orders sustaining defendants’ demurrer and dismissing the case; (2) the judgment awarding defendants costs associated with their demurrer; (3) Judge Chapman’s recusal order; (4) the trial court’s denial of his request for a statement of decision on various issues and motions; and (5) the trial court’s denial of his request to amend the trial court’s records to accurately name an individual defendant by his correct name.

III.

REQUEST FOR DISMISSAL

After this appeal was fully briefed, but before we issued a tentative opinion or held oral argument, Brown moved to dismiss the appeal.

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. Here, because the resolution of this case is fact specific, we grant the request.

III.

DISPOSITION

The appeal is dismissed. No costs are awarded on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.