Appeal Dismissed Because Trial Court Forgot to Sign the Dismissal Order on Appeal

Timothy Kowal, Esq.
  •  
February 26, 2021

Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal. Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable.

While this is technically the correct outcome, I cannot fault the plaintiff-appellate here. Technically nonappealable orders are often deemed appealable, and in such cases, failing to appeal would prove fatal. It just so happens that for this particular type of nonappealable order, the courts have decided never to treat them as appealable.

(But, being a cynic, and averse to malpractice exposure, I would not bank on it.)

Read on:

After the Labor Commissioner awarded a residential care facility employee over $300,000, the facility's owner appealed the award to the trial court.

Plaintiff failed to file a Case Management Conference Statement, and also failed to appear at the CMC. Whoops.

The trial court issued an order to show cause re dismissal. But things still weren't clicking for plaintiff. Although plaintiff filed the CMC statement this time, she didn't file it 15 days before the hearing as required. She filed it on the same day as the OSC. Plaintiff did send counsel to appear at the OSC. But the trial court's minute order reflected there was "no Cause shown." The court dismissed plaintiff's case.

Here is where the appellate problems come in for plaintiff: The trial court dismissed the case via a minute order. And the minute order was not signed. The Second District held that, consistent with the plain language of Code of Civil Procedure section 581d, dismissal orders must be signed. No signed dismissal, no appeal. Appeal dismissed.

But I note that this hard-and-fast rule does not apply to other kinds of orders, where an unsigned minute order might be appealable. The rules are rather uncertain and give little comfort. For example, statements of decision ordinarily are not appealable, but the California Supreme Court says "Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 (italics added).)

But courts have not taken Alan's requirement of a "signed" statement of decision too seriously. For example, Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904 found an unsigned statement of decision appealable because the trial court "clearly intended the statement of decision to constitute its final decision on the merits." So the signature does not appear to be an absolute requirement.

Give a listen to our podcast on When NonAppealable Orders Actually Are Appealable for more on this topic.

On dismissals under Code of Civil Procedure section 581d, however, a signature is absolutely required. The published opinion of the Fourth District, Division Three, in Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1579, is instructive on this. As the Lee court does here, Powell explained how signed dismissals were not required prior to the 1963 amendment to section 581d, so cases predating that change are no longer applicable. But they are absolutely required now.

And Powell suggests a good tip if you find yourself having appealed an unsigned dismissal order: simply ask the trial court to issue a signed dismissal nunc pro tunc. After all, it is a ministerial act the trial court is obliged to perform. See a similar recent case discussed here.

Failing that, however, had the plaintiff come to me on the last day to take an appeal from this technically nonappealable order, I must say I would have advised the same course she took here. I would never be too confident the court is going to find an order nonappealable. You are better off assuming the order is appealable.

But don't feel too badly for the appellant here. After a brief trip back to the trial court to get her signed dismissal, she will be right back before the Court of Appeal.

But with a judgment against her at that point, she will need to listen to the California Appellate Law Podcast episode on obtaining a stay of enforcement pending appeal.

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