Caution: A Dismissed Appeal Is with Prejudice

Timothy Kowal, Esq.
October 6, 2022

…unless the appeal is dismissed because it was premature.

If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice.

That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state “without prejudice.”

The order dismissing an earlier appeal of a pretrial sanctions order in Bush v. Cardinale (Sep. 27, 2022) No. A158757 (nonpub. opn.) did not expressly state “without prejudice.” So when the appellant appealed the sanctions order again—this time after a final judgment—the respondent pounced. The respondent filed a motion to dismiss the appeal. And the respondent cited section 913, arguing the prior dismissal of the appeal was with prejudice.

But for every rule, an exception. Here, the prior appeal was from a nonappealable order—i.e., from a sanctions order of under $5,000. That meant the Court of Appeal never had jurisdiction over the prior order, and thus could never have affirmed, which in turn meant that the dismissal could not have been prejudicial.

So the motion to dismiss was denied. But on the merits, the sanctions order was affirmed anyway.

Dismissals of appeals ordinarily are with prejudice to filing a subsequent appeal, but not when the prior appeal was premature or taken from a nonappealable order.

Here is the authority to clip-and-save regarding dismissals of appeals:

“In general, if an order dismissing an appeal does not say it is without prejudice, then by operation of law under section 913 it is with prejudice. (Estate of Sapp (2019) 36 Cal.App.5th 86, 100.) A dismissal with prejudice has the effect of affirming the appealed judgment or order, and the appellant therefore is barred from challenging the judgment or order in a later appeal. (In re Jasmon O. (1994) 8 Cal.4th 398, 413 ["Normally the involuntary dismissal of an appeal leaves the judgment intact."]; Estate of Sapp, supra, at p. 100; Linn v. Weinraub (1948) 8 Cal.App.2d 109, 110 ["As the effect of the 11 order of dismissal herein was affirmance of the judgment, no second appeal from the same judgment can be maintained."].)

“But the statutory bar to a second appeal does not arise from the dismissal of an initial appeal that could not have proceeded on the merits, such as an appeal from a nonappealable order or a premature appeal. (King v. Goldberg (1958) 159 Cal.App.2d 543, 547-548 [predecessor statute to section 913 did not apply where first appeal was taken from a nonappealable order]; 9 Witkin, Cal. Procedure (6th ed. 2022) Appeal, § 790 [general rule that dismissal of appeal operates as affirmance is subject to an exception: "Where the appeal is void, e.g., because taken prematurely, it does not deprive the trial court of jurisdiction over the judgment and does not give the appellate court jurisdiction to affirm it." (Citing Estate of Kennedy (1900) 129 Cal. 384, 385.)].)”

Here, the prior appeal was from a sanctions order of $2,000. Sanctions orders may be independently appealable under the appealability statute, section 904.1. But only if the sanctions are for more than $5,000. The prior appeal was premature from a nonappealable order. So the dismissal of that appeal was not prejudicial.

Comment: Proceed with caution when dismissing an appeal. Even in this case, I am not so sure the prior appeal was premature or taken from a nonappealable order. True, the sanctions order was not more than $5,000, and section 904.1 says only sanctions orders over $5,000 are appealable. But there is also authority saying that sanctions against an attorney are appealable as collateral orders. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634, fn. 3 [ 150 Cal.Rptr. 461 , 586 P.2d 942]; In re Marriage of Gumalbao (1984) 150 Cal.App.3d 572, 574-575, fn. 2 [ 198 Cal.Rptr. 90].)

The only way to really be sure: Take the appeal from the earlier order, and oppose the motion to dismiss. If the Court of Appeal dismisses on grounds it is premature, then you know. But I would not want to risk the Court of Appeal later concluding that the earlier order might have been appealable as a collateral order.

H/T to the California Attorney Fee Blog for mentioning this case.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.

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