Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).
That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.
The appellant in Ortiz was unhappy with an arbitration award. The appellant moved the trial court to vacate the award, which was heard at the same time as the prevailing party’s petition to confirm the award. The appellant lost, with the court confirming the award. But the court did not actually enter a judgment on the award.
The appellant appealed the order confirming the award.
“An aggrieved party may appeal from an order dismissing a petition to confirm, correct or vacate an award. [Citation.] No appeal, however, will lie from an order denying vacation or correction of an arbitration award. [Citations.] Such an order may be reviewed upon an appeal from the judgment of confirmation.” (Mid-Wilshire Assoc. v. O’Leary (1992) 7 Cal.App.4th 1450, 1453-1454, original italics.) Likewise, “[a]n appeal lies only from the judgment entered on an order confirming an arbitration award, not from the order.” (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326, original italics.)
“In this case, there is no judgment confirming the award. Accordingly, the appeal from the order ... denying the motion to vacate ... the award must be dismissed.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
The appellant urged the Court of Appeal to save the appeal by deeming it to have been taken from a judgment. The appellant argued that is what happened in Cooper.
But the court distinguished Cooper. There, a judgment actually had been entered after the appeal was filed. The court noted: “Indeed, Cooper cited California Rules of Court, rule 8.104(d), which states, under a heading entitled “Premature notice of appeal,” that “[a] notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment ” and that “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Italics added.)”
Here, there had been no judgment. So the court declined to save the premature appeal.
The court also declined to treat the appeal as a writ petition. In contrast to the liberal approach the courts sometimes take in treating appeals as writs, the court here expressed a dim view of that practice, quoting Mid-Wilshire, supra, 7 Cal.App.4th at pages 1455-1456:
“If we were to do otherwise, we would ignore the mandate of our Supreme Court to reserve the exercise of that discretionary power for cases involving compelling evidence of ‘unusual circumstances.’ [Citation.] Strong policy reasons underpin the one final judgment rule, and the guidelines for ‘saving’ appeals from nonappealable orders. The interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders. To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice.”
While the outcome is not surprising, the strident tone is a little surprising. Courts often rather cavalierly forgive litigants for taking premature appeals. In episode 2 of the California Appellate Law Podcast, we discussed some of the cases that exercised jurisdiction over premature appeals. Courts have deemed orders granting summary judgment to be judgments. (See Lowery v. Kindred Healthcare Operating (2020) 49 Cal.App.5th 119, 121 n.1 [where it was not clear judgment had been entered].)
My favorite case in this vein is Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), at *2 n.1. In that case, the Court of Appeal was faced with a premature appeal of an order granting summary judgment. The court there — apparently more motivated to forgive the misstep than was the Ortiz court — 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.
Be cautious in determining when to appeal. But if you spot a defect, be prepared to explain to the court the many tools it has in its toolkit to save the appeal.
Another Tip: Once you spot that you have a premature appeal, be prepared to go back to the trial judge and ask that a judgment be entered immediately so that your appeal can proceed. On request via email, I am happy to send you a template motion to enter judgment.
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. 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 email@example.com or (714) 641-1232.
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