Corona v. Babakhyi

Filed 11/30/05 Corona v. Babakhyi CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JENNIFER ANN CORONA, Plaintiff and Appellant, v. MARCEL BABAKHYI, Defendant and Respondent.

B178909 (Los Angeles County Super. Ct. No. LC067490)

APPEAL from an order of the Superior Court of Los Angeles County, Stanley M. Weissberg, Judge. Dismissed.

Weinreb, Weinreb & Mandell and Michael D. Weinreb for Plaintiff and Appellant.

Law Offices of Lydia Bouzaglou-Newcomb; Law Offices of Craig Hartsuyker and James W. Gates for Defendant and Respondent.

____________________

INTRODUCTION

Plaintiff Jennifer Ann Corona (Corona) appeals from an order of dismissal which followed the granting of defendant Marcel Babakhyi’s (Babakhyi) motion to strike plaintiff’s complaint without leave to amend.^[1] Pursuant to a stipulation by the parties, we dismiss the appeal.

DISCUSSION

Babakhyi originally filed a complaint against Corona on October 31, 2003, seeking damages for personal injury and property damage arising out of an automobile accident on July 21, 2003. Corona, represented by counsel retained by her insurer, Farmers Insurance Company (Farmers), answered Babakhyi’s complaint on December 8, 2003. Before the answer was filed, Corona’s personal attorney, Michael D. Weinreb, prepared a cross-complaint to be filed in the Babakhyi action and sent it to Farmers with a request that it be filed with the answer. Through neglect, Farmers failed to file the cross-complaint with the answer.

On January 20, 2004, after learning that the cross-complaint had not been filed, Attorney Weinreb on behalf of Corona filed a complaint against Babakhyi arising out of the same July 21, 2003 automobile accident. On June 10, 2004, Corona by Attorney Weinreb filed a notice of related cases.

On June 24, 2004, Babakhyi filed a request for dismissal of his complaint without prejudice. The request specified that the dismissal would not serve as a retraxit. The requested dismissal was granted. Babakhyi then filed a motion to strike Corona’s complaint and for judgment on the pleadings based on Corona’s failure to raise her claims against him in a cross-complaint in his action against her. The trial court granted the motion to strike the complaint on this basis, noting that Corona failed to seek leave of the court to file a cross-complaint or to show an agreement between the parties permitting her to file the instant action. Having granted the motion to strike, the trial court dismissed Corona’s action.

This case came before us for oral argument on October 25, 2005. At that time, we recommended that the parties attempt to settle the case and request dismissal of the appeal. They agreed to do so. On November 16, 2005, Corona filed a request for dismissal of the appeal accompanied by the parties’ stipulation to dismissal of the appeal following settlement.

The request for dismissal of this appeal is granted. The appeal filed on October 18, 2004 is dismissed with prejudice. (Cal. Rules of Court, rule 20 (c)(2).) In accordance with their stipulation, the parties are to bear their own costs on appeal. The remittitur shall issue forthwith. (Id., rules 20 (c)(2), 26 (c)(1).)

NOT TO BE PUBLISHED

SPENCER, P.J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

Alpine Lawyers are available and standing by to help you.

^[1] In actuality, plaintiff purports to appeal from the minute order granting the motion to strike without leave to amend. This order is not appealable. (W. A. Rose Co. v. Municipal Court (1959) 176 Cal.App.2d 67, 74.) The appeal must be taken from the subsequent order or judgment dismissing the action. (Cf. Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342.) In the interests of justice, we deem plaintiff’s appeal to have been taken from the order of dismissal entered after plaintiff filed her notice of appeal. (Baldwin Park Redevelopment Agency v. Irving (1984) 156 Cal.App.3d 428, 433.)