The court sympathizes with the appellant here whose two motions to vacate were denied, but holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial.
In Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.), Ramirez moved to vacate the dismissal of her complaint, relying on Code of Civil Procedure section 473 based on excusable neglect. Ramirez made a clerical mistake in her motion, unfortunately, identifying the dismissal of a cross-complaint. This shouldn’t have really mattered. As the Court of Appeal noted, “A reasonable person, well-acquainted with the record, could have looked at that motion and thought, “Oh, this doesn't really mean the cross-complaint dismissal, that's just a mistake, it's really directed at the [complaint] dismissal.””
But the trial court denied the motion and told Ramirez to bring another motion identifying the correct dismissal order. Which she did. But then the trial court denied that motion as untimely.
Ramirez then appealed. But her notice of appeal only listed the date of the second denial order. Not the first denial order. Ramirez argued the first denial order in her appeal. But the court held that the defect in her notice of appeal was insurmountable: she needed to appeal the first denial order, and she didn’t.
The defect wouldn’t have been a problem if the second order — which Ramirez did identify in her notice of appeal — was not an appealable order. After all, a “notice of appeal must be liberally construed.” (Cal. Rules of Court, rule 8.100(a)(2).) Thus, if a notice specifies an order issued on one date, but the only order then appealable was issued on a different date, the notice may be construed as an appeal from the latter (at least in the absence of prejudice to the respondent). (E.g., Swasey v. Adair (1890) 83 Cal. 136, 137; Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246; Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 914-915.) So where the date specified is obviously a mistake — i.e., because an appellant is not presumed to have appealed from a nonappealable order — the appellant may be deemed to have appealed from the appealable order.
But here, both the orders denying Ramirez’s two motions to vacate were separately appealable: “On the other hand, where several judgments and/or orders occurring close in time are separately appealable ..., each appealable judgment and order must be expressly specified ... in order to be reviewable on appeal. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) Notice of Appeal and Cross-Appeal, ¶ 3:119.1, p. 3-53, and cases cited.) “ ‘ “The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only ... one of two separate appealable judgments or orders.” ’ [Citation.]” (In re J.F. (2019) 39 Cal.App.5th 70, 76.)
By only listing the second, and not the first, the only reasonable interpretation was that Ramirez did not intend to appeal from the first order.
Appeal dismissed.
The court had misgivings about the result: “We take no pleasure in dismissing Ramirez's appeal. She was denied a hearing on her claims in the trial court; now we are denying a hearing on her claims in this court. “[T]he strong policy against disposing of cases on procedural deficiencies rather than trying cases on the merits” is close to our hearts. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085.) But “[a] proper notice of appeal from an appealable order is jurisdictional. [Citations.]” (Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 440.) We have no leeway to let Ramirez appeal from an order not specified in her notice of appeal, no matter how much it may appear to be in the interest of justice to do so.”
Comment:
This is a good, lawyerly analysis. But it is not the analysis other courts would follow. Last year a very similar thing happened in San Felipe Farms L.P. v. LLY Ranch (D4d3 Jul. 8, 2021) no. G060126 (discussed here), but with the opposite result: the Court of Appeal saved the appeal and decided it on the merits. The appellant had filed two motions for intervention, which were both denied. They were arguably both appealable (the court specifically did not decide that point), but the appellant only appealed from the second order. The court held that it didn’t matter: either way, the notice of appeal listing the second order could be deemed to encompass the first order as well.
Here’s another solution if the court wanted to be as creative as the Second District, Division Three in Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), at *2 n.1: just order the trial court to enter a nunc pro tunc order to make the order conform to the date in the notice of appeal. In Beckering, the Court of Appeal was faced with a premature appeal of an order granting summary judgment. No problem: the court simply ordered the trial court to enter a judgment nunc pro tunc the same date as the summary judgment order. Without awaiting the actual nunc pro tunc judgment, the court, quite satisfied, went on to construe the notice of appeal as referencing that as-yet-nonexistent judgment.
To repeat, I agree with the Ramirez court’s treatment here, respecting the appellate court’s jurisdictional limits. But that treatment seems to be rare these days.
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 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.
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