Barnes v. Litton Sys., Inc., 28 Cal. App. 4th 681 (Cal. Ct. App. 1994). · Go Syfert
Barnes v. Litton Sys., Inc., 28 Cal. App. 4th 681 (Cal. Ct. App. 1994). Cases Citing This Book View Copy Cite
39 citation events (26 in the last 25 years) across 2 distinct courts.
Strongest positive: Apartment Owners Assn. of Cal. v. City of L.A. CA2/4 (calctapp, 2022-12-28)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Apartment Owners Assn. of Cal. v. City of L.A. CA2/4
Cal. Ct. App. · 2022 · confidence medium
Appellants ask us to direct the trial court to reconsider the cross-motions for summary judgment under Zolly, while the City contends that those motions are now moot and the “parties should litigate anew whether the franchise fees are taxes in light of Zolly.” The City’s reliance on Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 683 (Barnes) is misplaced.
discussed Cited as authority (rule) Richert. v. Colvin CA5
Cal. Ct. App. · 2022 · confidence medium
The Subject Order Is Appealable Under Sections 1304 and 17200 “[T]he California Supreme Court has repeatedly held that the right to appeal is wholly statutory.” (Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 683 (Barnes) [citing numerous cases]; Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point) [“The right to appeal is wholly statutory.”].) “[T]here is no federal or state constitutional right to appeal.” (Barnes, at p. 682.) “The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal.” (Canand…
cited Cited as authority (rule) O'Neal v. Stanislaus County Employees' Retirement Assn. CA5
Cal. Ct. App. · 2021 · confidence medium
(See Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 683-684 [citing cases in agreement].) At this point, the court lacked any statutory authority to hear an appeal on the costs award.
discussed Cited as authority (rule) Williams v. Safire CA1/5
Cal. Ct. App. · 2013 · confidence medium
(Barnes, supra, 28 Cal.App.4th at p. 685, fn. 4 [waiver by failing to assert the exception].) The court did note in dicta: “[W]e would be compelled to conclude the order taxing costs would be nonappealable” because it was not an order to pay money.
discussed Cited as authority (rule) Krikorian Premiere Theatres, LLC v. Westminster Central, LLC (2×) also: Cited "see, e.g."
Cal. Ct. App. · 2011 · confidence medium
After a judgment is entered, [the appellant] may appeal . . . from the interlocutory determination . . . taxing costs. [Citation.]” (Ibid., fn. omitted.) In a footnote, the court also held that the order taxing costs was not appealable under the collateral order doctrine: “The collateral order doctrine only applies to orders to pay money. [Citation.] The amount remaining due by defendant after the order partially taxing the sums sought in the postappeal cost memorandum is immediately collectible by plaintiff. [Citation.] Plaintiff’s contention is he is entitled to more money; that is not…
discussed Cited as authority (rule) Otay River Constructors v. San Diego Expressway
Cal. Ct. App. · 2008 · signal: cf. · confidence medium
(Lachkar v. Lachkar (1986) 182 Cal.App.3d 641, 645, fn. 1 [ 227 Cal.Rptr. 501 ] (Lachkar); cf. Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685 [ 33 Cal.Rptr.2d 562 ] [order taxing costs is not sufficiently final to be appealable by party seeking additional costs and appeal can be taken after judgment is entered].) The Marcus and MBNA courts, however, did not cite the collateral order doctrine; rather, these courts noted that the respective orders vacating an arbitration award (Marcus) and denying a petition to confirm an arbitration award (MBNA) were “final” and that the prev…
cited Cited as authority (rule) Lazan v. County of Riverside
Cal. Ct. App. · 2006 · confidence medium
(See Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 684 [ 33 Cal.Rptr.2d 562 ].) 6.
discussed Cited as authority (rule) Solis v. VALLAR
Cal. Ct. App. · 1999 · confidence medium
(Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652 [ 25 Cal.Rptr.2d 109 , 863 P.2d 179 ].) Any doubt whether such an order is sufficiently final (see Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 684 [ 33 Cal.Rptr.2d 562 ]) is resolved by section 874.240: “A conveyance or transfer pursuant to Sections 873.750 and 873.790 or Section 873.960 is binding and conclusive, in the same manner as a judgment.” Section 873.750 governs the confirmation order, and calls for the court to “order the referee to execute a conveyance or other instrument of transfer.” (§ 8…
discussed Cited as authority (rule) Soldinger v. Northwest Airlines, Inc. (2×)
Cal. Ct. App. · 1996 · confidence medium
(Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685, fn. 4 [ 33 Cal.Rptr.2d 562 ]; Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322 [ 44 Cal.Rptr.2d 902 ].) 17 Northwest Airlines does not make this argument regarding Soldinger’s allegations for failure to accommodate religious beliefs or for disparate treatment. 18 Soldinger was not required to exhaust her administrative remedies with regard to non-statutory causes of action.
discussed Cited as authority (rule) In Re Alexandria Y.
Cal. Ct. App. · 1996 · confidence medium
The posture of the case was as if none of the subsequent hearings had been held. ( Barnes v. Litton Systems, Inc. (1994) 28 Cal. App.4th 681, 683-684 [ 33 Cal. Rptr.2d 562 ].) Although we could have addressed the issue for the guidance of the trial court on remand, we chose not to.
cited Cited as authority (rule) Orange County Social Services Agency v. Renea Y.
Cal. Ct. App. · 1996 · confidence medium
(Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 683-684 [ 33 Cal.Rptr.2d 562 ].) Although we could have addressed the issue for the guidance of the trial court on remand, we chose not to.
discussed Cited as authority (rule) City and County of San Francisco v. Shers
Cal. Ct. App. · 1995 · confidence medium
Discussion A. Appealability of an Order Appointing a Successor Receiver Under Section 904.1 The City contends that the order appointing a successor receiver is not appealable. “[T]he California Supreme Court has repeatedly held that the right to appeal is wholly statutory. [Citation.]” (Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 683 [ 33 Cal.Rptr.2d 562 ].) The superior court judgments or orders which may be appealed are listed in section 904.1.
discussed Cited "see, e.g." Faitro v. Top Surgeons CA2/4
Cal. Ct. App. · 2023 · signal: see also · confidence medium
Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263 , 281 & fn. 1 [concluding order made after entry of judgment and placing motion off calendar is nonappealable]; see also Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685 [“an essential element of an appealable postjudgment order is one which is not preliminary to later proceedings”]; R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188 , 1193–1194 [off calendar “‘is not synonymous with “dismissal”’” and “‘merely means a postponement’”].) Defendants rely on American Advertisin…
Retrieving the full opinion text from the archive…
Thomas J. Barnes, and
v.
Litton Systems, Inc., And
B079729.
California Court of Appeal.
Sep 21, 1994.
28 Cal. App. 4th 681
COUNSEL Thomas J. Barnes, in pro. per., for Plaintiff and Appellant. Cappadona Oldman and Julian B. Bellenghi for Defendants and Respondents.
Turner.
Cited by 21 opinions  |  Published

OPINION

Plaintiff, Thomas J. Barnes, appeals from an order taxing costs after this court had reversed a summary judgment and remanded for trial. In an order to show cause, we raise the issue of whether an order taxing costs is appealable. The parties have briefed the issue. We conclude such an order is not appealable and dismiss the appeal.

On December 18, 1991, summary judgment was entered at the request of defendant, Litton Systems, Inc. An appeal was taken and on April 20, 1993, this court reversed the summary judgment in an unpublished opinion. (Barnes v. Litton Systems, Inc. (Apr. 20, 1993) B064749.) Upon remand, plaintiff filed a cost memorandum. A motion to tax costs was granted in part. On October 20, 1993, plaintiff filed the following notice of appeal: "NOTICE IS HEREBY GIVEN THAT DEFENDANT THOMAS BARNES, APPEALS TO THE COURT OF APPEALS FOR THE SECOND DISTRICT, the Minute Order and Judgment entered on October 12, 1993 in favor of plaintiff and defendant in this case. [¶] This is a partial appeal, appealing only the taxing of plaintiff's preparation of Record on Appeal to this Court." On June 17, 1994, this court issued an order to show cause requesting briefing concerning possible dismissal of the appeal. The parties have filed responses.

(1) We agree with defendant that an order taxing costs is not separately appealable. The order under review is not described specifically in Code of Civil Procedure section 904.11 Subject to constitutional limitations, there is no federal or state constitutional right to appeal. (Lindsey v. Normet (1972) 405 U.S. 56, 77 [31 L.Ed.2d 36, 52-53, 92 S.Ct. 862];Trede v. Superior *Page 683 Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745].) Further, the California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976)18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [164 Cal.Rptr. 1, 609 P.2d 468] ["a judgment or order is not appealable unless expressly made so by statute"]; Skaff v.Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65,435 P.2d 825] [". . . a party possesses no right of appeal except as provided by statute"]; People v. Keener (1961) 55 Cal.2d 714,720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] [". . . an order is not appealable unless declared to be so by the Constitution or by statute"];People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962)58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641] [". . . the right of appeal is statutory and a judgment . . . is not appealable unless it is expressly made so by statute"]; ModernBarber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728 [192 P.2d 916] [". . . the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable"]; Trede v. SuperiorCourt, supra, 21 Cal.2d at p. 634 [there being no constitutional right of appeal; ". . . the appellate procedure is entirely statutory and subject to complete legislative control"];Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384,386 [264 P. 488] ["right of appeal is statutory and may be granted or withheld"].) Accordingly, if the order under review is appealable at all, it must be pursuant to section 904.1, subdivision (a)(2) which states in pertinent part: "An appeal may be taken from a superior court in the following cases: [¶] . . . [¶] (2) From an order made after a judgment made appealable by paragraph (1)."

Plaintiff's argument that an order taxing costs after a reversal of a judgment on appeal is properly before this court pursuant to section 904.1, subdivision (a) as an appeal from an order made after an appealable judgment is without merit for two reasons. First, as noted previously, this court's nonpublished opinion of April 20, 1993, reversed the summary judgment in its entirety. The California Supreme Court has consistently held that a reversal of a judgment places the case in a posture as though one had never been entered at all. (People v. Mattson (1990)50 Cal.3d 826, 849 [268 Cal.Rptr. 802, 789 P.2d 983] [an unqualified reversal "`places the parties in the trial court in the same position as if the cause had never been tried.'"];Weisenburg v. Cragholm (1971) 5 Cal.3d 892, 896 [97 Cal.Rptr. 862,489 P.2d 1126] [when a judgment was unqualifiedly reversed ". . . the effect was the same as if it had never been entered"];People v. Murphy (1963) 59 Cal.2d 818, 833 [31 Cal.Rptr. 306,382 P.2d 346] [". . . an unqualified *Page 684 reversal remands the cause for new trial and places the parties in the trial court in the same position as if the cause had never been tried. [Citation]"]; Hall v. Superior Court (1955)45 Cal.2d 377, 381 [289 P.2d 431] [a general or partial reversal "`places the parties in the trial court in the same position as if the cause had never been tried'"]; Erlin v. National UnionFire Ins. Co. (1936) 7 Cal.2d 547, 549 [61 P.2d 756] ["[s]uch a reversal remands the case for a new trial and places the parties in the same position as if the case had never been tried. [Citations.]"].) Since the effect of a general reversal is to create a situation where no judgment is deemed entered, the present appeal may not be justified pursuant to section 904.1, subdivision (a)(2). The procedural posture of the case is one in which no judgment has been entered.2

Second, even if the present appeal can be deemed to be one from an order after judgment, it would not be appealable because it is not sufficiently final. Our Supreme Court has described the scope of appealable postjudgment orders as follows: "The rule that an appealable postjudgment order must affect the judgment or relate to its enforcement has existed for more than a century. . . . [¶] In the ensuing years we determined the appealability of a variety of postjudgment orders. It is instructive to review those we have held that do not affect the judgment or relate to its enforcement, and hence were not appealable. All are orders that, although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal. [¶] For example, we held not appealable a posttrial order excusing a plaintiff's failure to present a bill of exceptions for a settlement before making a motion for a new trial; it would become appealable as part of an appeal from the later motion for a new trial. [Citation.] Similarly, an order denying a motion to amend an order vacating a judgment `could be reviewed by appeal only on an appeal from the subsequent final judgment.' [Citation.] An order approving employment of additional counsel for a receiver with respect to an appeal `is not a matter affecting the enforcement of the [preceding] judgment.' [Citation.]" (Lakin v. WatkinsAssociated Industries (1993) 6 Cal.4th 644, 652 [25 Cal.Rptr.2d 109,863 P.2d 179].) In Lakin, the issue involved the postjudgment denial of a motion for attorney fees. The court emphasized that the order was "not preliminary to future proceedings and will not become subject to appeal after a future judgment." (Id. at p. 654.) In concluding that the order was appealable, our Supreme Court held: "Accordingly, we hold that the order here in issue, denying an award of attorney's fees requested pursuant to *Page 685 Code of Civil Procedure section 2033, subdivision (o), is a postjudgment order that affects the judgment or relates to its enforcement because it determines the rights and liabilities of the parties arising from the judgment, is not preliminary tolater proceedings, and will not become subject to appeal aftersome future judgment." (Id. at p. 656, italics added.) As can be noted from Lakin, an essential element of an appealable postjudgment order is one which is not preliminary to later proceedings and will not become subject to an appeal after some future judgment.

We conclude that the order taxing costs is not sufficiently final to be appealable pursuant to section 904.1, subdivision (a)(2). As noted by defendant, the case is presently awaiting trial. The order taxing costs is therefore one which is "preliminary to a later proceedings" within the meaning ofLakin v. Watkins Associated Industries, supra,6 Cal.4th at pages 654, 656. After a judgment is entered, he may appeal at that time from the interlocutory determination of October 12, 1993, taxing costs.3 (§ 906.) Accordingly, given the Lakin opinion, the order of October 12, 1993, is not a proper postjudgment order which may be reviewed on appeal.4

The appeal is dismissed. All parties are to bear their own costs incurred in connection with the present appeal.

Armstrong, J., concurred.

1 All future statutory references are to the Code of Civil Procedure.
2 The present case is distinguishable from Citizens AgainstRent Control v. City of Berkeley (1986) 181 Cal.App.3d 213,223 [226 Cal.Rptr. 265], where the court held a postjudgment order taxing costs was appealable because it was entered after a judgment. However, in Citizens Against Rent Control, the judgment on appeal had been affirmed. Therefore, the judgment was in full force and effect at the time the order was entered taxing costs on appeal.
3 Plaintiff could have challenged the interlocutory cost determination by means of a writ of mandate.
4 Plaintiff has not contended that the October 12, 1993, ruling is subject to the collateral order doctrine. (Sjoberg v.Hastorf (1948) 33 Cal.2d 116, 119 [199 P.2d 668].) We do not address this contention because it has not been raised and, has, accordingly, been waived. (Tiernan v. Trustees of Cal. StateUniversity Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [655 P.2d 317]; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66,70 [187 P.2d 686], disapproved on another point in Bailey v.County of Los Angeles (1956) 46 Cal.2d 132, 138-139 [293 P.2d 449].) Even if the collateral order doctrine issue had been preserved, we would be compelled to conclude the order taxing costs would be nonappealable. The collateral order doctrine only applies to orders to pay money. (Samuel v. StevedoringServices (1994) 24 Cal.App.4th 414, 418 [29 Cal.Rptr.2d 420].) The amount remaining due by defendant after the order partially taxing the sums sought in the postappeal cost memorandum is immediately collectible by plaintiff. (Cal. Rules of Court, rule 26(d).) Plaintiff's contention is he is entitled to more money; that is not an order to pay money which could be appealable pursuant to the collateral order doctrine.
*Page 686