Stevens v. Key Resistor Corp.

Opinion — Kincaid

KINCAID, J. pro tem.

* Plaintiff instituted the within action by filing his complaint for claimed damages due him by defendant as a result of an alleged improper termination by the latter of a contract of employment. Answer was filed by defendant and some time thereafter defendant filed an amended answer containing several counterclaims. A pretrial conference was held and the cause was set for trial on April 12, 1960.

*326 On April 6, I960, defendant noticed motions to strike portions of the complaint and for a judgment on the pleadings. Following hearing the court entered an order denying each of said motions.

Defendant appeals herein from the said order denying its motion for judgment on the pleadings. The cause was continued for trial and remains at issue and unadjudicated.

It would be improper for us to consider the several points presented by defendant on its attempted appeal herein for the reason that an order denying a motion in a pending action for a judgment on the pleadings is not appealable. Section 963, Code of Civil Procedure, enumerates the cases in which an appeal may be taken from a superior court as being from a final judgment entered in an action or special proceeding or from certain specifically designated orders and judgments. The order from which appeal is taken herein is excluded from the provisions of said section.

Other excluded orders have been held to be nonappealable such as one granting or denying a motion to strike a pleading (W.

A. Rose Co.

v. Municipal Court, 176 Cal.App.2d 67, 74 [1 Cal.Rptr. 49] ;

Keenan v. Dean, 134 Cal.App.2d 189, 191 [285 P.2d 300]) ; an order sustaining a demurrer without leave to amend (Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 660 [323 P.2d 158]) ; and an order sustaining a demurrer (Evans v. Dabney, 37 Cal.2d 758, 759 [235 P.2d 604]).

No judgment has as yet been rendered in this case. The order denying the motion for judgment on the pleadings is in no sense a final adjudication as between plaintiff and defendant. The complaint of plaintiff and the answer and counterclaims of defendant remain pending and untried. Following trial and judgment the present order from which appeal is now taken could properly be reviewed on an appeal from such a judgment. In the meantime, the appeal herein is prematurely filed.

(Yandell v. City of Los Angeles, 214 Cal. 234, 235 [4 P.2d 947] ;

Kennedy v. Owen, 85 Cal.App.2d 517, 519 [193 P.2d 141] ;

Wood v. Metzenbaum, 90 Cal.App.2d 533, 537 [203 P.2d 105].)

The purported appeal from the order denying the motion of defendant for a judgment on the pleadings is dismissed.

Fox, P. J., and Ashburn, J., concurred.

* Assigned by Chairman of Judicial Council.