Defective Appeal Results in Loss of Entire Case to Five-Year Rule

Timothy Kowal, Esq.
July 29, 2021

One of the first questions an appellate attorney tries to answer is whether there is an appealable order. It is pretty obvious why this is important: if the order is not appealable, your appeal will lose.

But have you also considered: if you appeal from a nonappealable order, your entire case might lose?

That is what happened in Villegas v. Six Flags Entertainment Corporation (D2d4 Jun. 29, 2021) no. B295352 (nonpub. opn.). The appellants appealed from the denial of their class certification motion. These normally are appealable under the "death knell" doctrine, because it effectively kills the class action.

But it was not appealable here, and the appeal was dismissed. By the time it was dismissed, the five-year statute had run and the plaintiff-appellants had not brought their case to trial. Case dismissed.

The Death Knell Doctrine Does Not Apply When PAGA Claims Are Also Asserted:

Unfortunately for the appellants, the death-knell doctrine does not apply – and the denial of class cert is not appealable – when the plaintiff-appellants also have PAGA claims. (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 311 (Munoz) [“Given the potential for recovery of significant civil penalties if the PAGA claims are successful, as well as attorney fees and costs, plaintiffs have ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court's order denying class certification. Denial of class certification where the PAGA claims remain in the trial court would not have the ‘legal effect’ of a final judgment ....”].)

Plaintiffs’ appeal, therefore, was from an interlocutory, nonappealable order.

A Defective Notice of Appeal – Including Appealing from a Nonappealable Order – Does Not Toll the Five-Year Statute to Bring a Case to Trial:

Normally, taking an appeal stays the trial court proceedings. Code of Civil Procedure section 916, subdivision (a) provides that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby...."

The automatic appellate stay tolls the five-year statute under Code of Civil Procedure section 583.310. The three statutory exceptions that toll the five-year limit are periods when: “(a) [t]he jurisdiction of the court to try the action was suspended[;] [¶] (b) [p]rosecution or trial of the action was stayed or enjoined[;][and] [¶] (c) [b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile.” (§ 583.340, subds. (a)-(c).)

But the automatic appellate stay under section 916 only applies "upon a 'duly perfected' appeal." (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 (Hearn Pacific).) It therefore follows that an “invalid” appeal does “not affect the trial court's jurisdiction to proceed. [Citations.]” (Id. at pp. 146-147; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666 (Pazderka) [If an “order is nonappealable, the appeal was never perfected and the trial court retained jurisdiction ....”].)

At this point, however, it is fair to ask: Who gets to decide if the appeal is defective? If the notice of appeal is defective on its face, then the rule makes sense. But what if the question of appealability or nonappealability turn on factors extrinsic to the notice of appeal?

Under Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401 (Hopkins), for example, there is support for the argument that where the appealability or nonappealability "depends on facts that are at least theoretically disputable," then "[a]rguably the appellate court acquires exclusive jurisdiction in such a case to determine whether the appeal is in fact untimely, and until it has made that determination the trial court is without power in the matter.”

Here, the appellants noted the trial court itself said, "I think I've lost jurisdiction," and "I don't have jurisdiction. I can't do nothing [sic]." So how can the appellants be charged with the time consumed by the appeal when the trial court acquiesced in the putative stay?

But the Second District Court of Appeal here was not persuaded. The existence of the appellants' PAGA claims were not disputable. The appeal was not perfected. Thus, the appellants did not get the benefit of the extra 118 days consumed by the dismissed appeal, and five-year period expired.

Takeaway: Appellants ultimately lost their entire case simply by taking an appeal from a nonappealable order. Almost certainly no one imagined the potential for such an outcome. It can be difficult to predict the problems that can arise from appealing a nonappealable order. In this case, at least, it certainly would have been worth consulting an appellate attorney before filing the notice of 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, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.