Franco v. Bamboo Ide8 Ins. Services, LLC CA4/2

Filed 10/20/26 Franco v. Bamboo Ide8 Ins. Services, LLC CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO MARRIETTE FRANCO et al., Plaintiffs and Appellants, E085225 v. (Super.Ct.No. CIVSB2127378) BAMBOO IDE8 INSURANCE OPINION SERVICES, LLC et al., Defendants and Respondents. APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Dismissed. Abir Cohen Treyzon Salo, Kevin M. Pollack, Lindsey Downey; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Appellants. 1  Burton Kelley, Michelle R. Burton, Michael Vachon and Samantha Yu for Defendants and Respondents. Plaintiffs and appellants Marriette Franco and Jesse Lopez (collectively, Homeowners) sued defendants and respondents Bamboo Ide8 Insurance Services, LLC, and Catlin Insurance Company, Inc. (collectively, Insurers) for (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing. In their complaint, Homeowners alleged their house suffered water damage in October 2020, and Insurers wrongfully delayed paying Homeowners’ insurance claim.1 Insurers moved for summary adjudication of the cause of action for breach of the implied covenant of good faith and fair dealing. The trial court issued a ruling granting the motion on September 3, 2024. On November 8, 2024, Homeowners requested dismissal, without prejudice, of their remaining breach of contract cause of action. A note attached to the request for dismissal reads in part, “In order to facilitate an immediate appeal of the Court’s Motion for Summary Adjudication ruling as to [Homeowners’] second cause of action for breach of the implied covenant of good faith and fair dealing [Homeowners] desire to proceed with a dismissal, without prejudice, of their remaining cause of action against [Insurers] for breach of contract.” The trial court clerk entered the dismissal on November 8, 2024. 1 Homeowners filed their complaint before their claim was officially denied. Homeowners filed their complaint on October 29, 2021. The letter denying Homeowners’ claim is dated December 16, 2021. 2  Homeowners filed a notice of appeal asserting they were appealing from a judgment of dismissal entered on November 8, 2024. Homeowners attached the trial court clerk’s entry of dismissal to their notice of appeal. Insurers moved to dismiss the appeal. One of the argument headings in Insurers’ motion reads, “No Appealable Final Judgment Has Been Entered.” The final sentence in that argument section is: “There is no appealable final judgment in this case.” In opposing the motion, Homeowners asserted they could appeal from the clerk’s dismissal of the breach of contract cause of action. This court denied Insurers’ motion to dismiss without prejudice to Insurers raising the issue in their respondent’s brief. DISCUSSION In Insurers’ respondent’s brief, they again assert Homeowners’ appeal should be dismissed. We agree. An appeal may be taken from a final judgment or an appealable order. (Code Civ. Proc.,2 §§ 904, 904.1.) “It is the substance and effect of the adjudication, and not the form, which determines if the order is interlocutory and nonappealable, or final and appealable.” (Jacobs-Zorne v. Superior Court (1996) 46 Cal.App.4th 1064, 1070.) Homeowners’ notice of appeal is based upon the clerk’s entry of dismissal of the breach of contract cause of action. Accordingly, we focus on the clerk’s entry of dismissal because “[o]ur jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ [Citation.] We have no jurisdiction over an 2 All subsequent statutory reference will be to the Code of Civil Procedure unless otherwise indicated. 3 order not mentioned in the notice of appeal.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) The clerk’s entry of the voluntary dismissal of the breach of contract cause of action, without prejudice, is not appealable. (Gassner v. Stasa (2018) 30 Cal.App.5th 346, 354; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1364- 1365.) The clerk’s entry of dismissal is not a judicial order: “[T]he entry of dismissal by the clerk is a ‘ministerial, not a judicial, act, and no appeal lies therefrom.’ ” (Mon Chong Loong Trading Corp. v. Superior Court, supra, 218 Cal.App.4th at p. 92; see also Maniago v. Desert Cardiology Consultants’ Medical Group, Inc. (2025) 109 Cal.App.5th 621, 630.) Moreover, even if the clerk’s action were construed to be an order, Homeowners “obviously could not appeal [their] own voluntary dismissal” because Homeowners were given exactly what they requested, i.e., the entry of dismissal was not adverse to them. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 787.) In sum, the clerk’s entry of Homeowner’s voluntary dismissal is not an appealable action so we must dismiss the appeal. We note Homeowners can obtain a judgment in the trial court and appeal from the judgment.3 (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105; Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 743-744.) 3 Although Homeowners’ notice of appeal does not mention the order granting summary adjudication, out of an abundance of caution we note: “Generally, an order granting summary adjudication is an intermediate order which is ‘reviewable on appeal from the final judgment in the action.’ ” (Jacobs-Zorne v. Superior Court, supra, 46 Cal.App.4th at p. 1071.) 4  In support of Homeowners’ position that the clerk’s entry of dismissal is appealable, Homeowners cite Kurwa v. Kislinger, supra, 57 Cal.4th 1097. Homeowners’ reliance on Kurwa is misplaced. In Kurwa, the Supreme Court concluded that a plaintiff’s voluntary dismissal of a cause of action “unaccompanied by any agreement for future litigation, does create sufficient finality as to that cause of action so as to allow appeal from a judgment disposing of the other counts.” (Id. at p. 1105, italics added.) In the instant case, there is no judgment in favor of Insurers on the summarily adjudicated good faith and fair dealing cause of action. If Homeowners still want to appeal, they need to obtain a judgment in the trial court. Another case relied upon by Homeowners is Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967. In that case, the appellant was appealing the trial court’s orders “sustaining demurrers to five of his seven causes of action without leave to amend, and his own dismissal of the remainder of the complaint.” (Id. at p. 970.) The appellate court held that the appellant was “not entitled to appellate review of his voluntary dismissal of the action,” but the court did review the order sustaining the demurrer. (Id. at pp. 970-971.) The appellate court reviewed the order sustaining the demurrer explaining “that even though the trial court refused to enter judgment following his voluntary dismissal of the complaint, the court’s order sustaining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment.” (Id. at p. 974 , italics added.) There is nothing in the record indicating that, while the case was pending in the trial court, the parties asked for a 5 judgment and the trial court refused to issue one. Thus, as explained ante, the parties can still obtain a judgment and appeal from it. A third case relied upon by Homeowners is Berry v. Frazier (2023) 90 Cal.App.5th 1258. Berry relied on Gutkin, supra. In Berry, the trial court sustained Frazier’s demurrer, without leave to amend, to all but one of Berry’s causes of action. Berry then dismissed the remaining cause of action via a clerk’s entry of voluntary dismissal “resulting in a final judgment dismissing the action.” (Berry, at p. 1263.) Notably, the appeal in Berry was from a judgment. Thus, Homeowners’ reliance on Berry is misplaced. In sum, Homeowners’ notice of appeal is based upon the clerk’s entry of voluntary dismissal, and an appeal may not be taken from that clerical action. If Homeowners want to appeal again, they may obtain a judgment in the trial court and appeal from the judgment. (§§ 904, 904.1.) DISPOSITION The appeal is dismissed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) NOT TO BE PUBLISHED IN OFFICIAL REPORTS. MILLER J. We concur: McKINSTER Acting P. J. CODRINGTON J. 6