Appeal Held Improper Following Motion to Vacate Prejudgment Orders

Timothy Kowal, Esq.
April 5, 2021

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.)

Before appealing, employers tried to undo the damage in the trial court. But they bungled that, too. They filed a motion to vacate the order granting summary judgment. But before that motion was decided, the trial court entered judgment, and defendants served a notice of entry of judgment.

By the time the trial court ruled on employers' motion, it was more than 60 days later. Too late to appeal the judgment.

Eventually, the trial court denied the motion to vacate. Employers sought to appeal the orders granting summary adjudication and denying the motion to vacate, but those orders were not appealable. Held: appeal dismissed.

Some cautionary lessons from this opinion:

Beware Using the Judicial Council Form Notice of Appeal:

Though too late to appeal the judgment, employers' notice of appeal listed the order denying the motion to vacate.

But the Court of Appeal took exception to that, too. "The boxes for “judgment after an order granting summary judgment” and “other – motion to vacate summary judgment pursuant to CCP 6634 on ground of 473(b)” were checked. As to the latter box, no code section authorizing the appeal was specified, as required."

This is a curious remark by the court. It is curious because it is not, in fact, "required" to set forth the authority authorizing the appeal. All that is required in a notice of appeal is that it be served and filed in the superior court (CRC 8.100(a)(1)); signed (CRC 8.100(a)(1)); and identify the judgment or order being appealed. (CRC 8.100(a)(2).)

The Judicial Council form, however, calls for additional information, namely, the type of order appealed from and the authority making such orders appealable.

Beware using the Judicial Council form. As this case suggests, it sometimes gives the court ideas that other things may be required in your notice of appeal.

Another Note on Notices of Appeal:

The court spends some time explaining that "we cannot review any judgment or order – even if appealable – that is not mentioned in the notice of appeal." In fact, this is not quite correct, at least as framed in this opinion.

"A prior nonappealable order or ruling need not be specified in the notice of appeal from a subsequent appealable judgment." (Eisenberg et al., Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group 2018) ¶ 3:119, p. 3-52, citing Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 669.)

Of course, all appealable orders must be identified in the notice of appeal. But if you are appealing from the judgment, then prior nonappealable orders need not be enumerated.

Beware When Appealing Orders Other Than the Judgment Itself:

Rather than appeal the judgment itself, employers here appealed the order granting summary judgment. This, too, was folly. That is because an order granting summary judgment (or adjudication) is not appealable. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.)

Employers also appealed from the order denying their motion to vacate the summary judgment/adjudication order. But as the court points out, if the underlying order is not appealable, then neither is an order denying a motion to vacate it. “ ‘If the original ruling is not final and appealable in its own right, then it is not a judgment.... “[An] appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion.” [Citation.]’ [Citation.]” (J. Weinrot & Son v. Jackson (1985) 40 Cal.3d 327, 331, superseded by statute on other grounds, County of Monterey v. Mahabir (1991) 231 Cal.App.3d 1650.)"

Nor did employers get the benefit of the extension of time to appeal that normally applies when a party files a motion to vacate. "This rule does not apply here because Appellants did not file a motion to vacate the judgment," but instead appealed the nonappealable order granting summary adjudication.

Beware Late Settlements of Appeals:

One of the appellant employers decided to settle. But it only requested dismissal in the Court of Appeal the day before oral argument. "Since the entire appeal is dismissed, the request to dismiss Xiao Shao is moot." The settling appellant was stuck with the costs of appeal along with the other non-settling appellants.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.