Summary Judgment Not Appealed, But Reversed Anyway

Timothy Kowal, Esq.
January 26, 2023

What happens when an unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine? We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gives way. And so the plaintiff, who lost on summary judgment and forgot to appeal the judgment, got it reversed anyway.

After slipping and falling on the stairs in the parking structure on her way to a doctor appointment, the plaintiff sued both Kaiser and the operator of its parking structure, Modern Parking. The trial court granted summary judgment for both defendants.

But as sometimes happens, each defendant submitted a separate proposed judgment. And the trial court entered two separate judgments: one for Kaiser on September 15, and one for Modern Parking on September 21.

The plaintiff appealed from the Kaiser judgment on September 16. At that time, the Modern Parking judgment had not been entered. The Modern Parking judgment was entered five days later on September 21. The clerk mailed it to the plaintiff the same day. And two weeks later, Modern Parking served the plaintiff with a notice of entry of its separate September 21 judgment.

Yet the plaintiff never appealed from the September 21 Modern Parking judgment.

So Modern Parking argued “this court has no jurisdiction to consider an appeal from the September 21, 2021 judgment….” The court agreed.

(The “saving doctrine” would not apply here. That doctrine allows a reviewing court to deem a premature notice of appeal (such as an appeal from a nonappealable order granting summary judgment) to be taken from the subsequent appealable order (such as the summary judgment itself). But here, the plaintiff’s notice of appeal did not identify the order granting summary judgment: it identified the summary judgment for Kaiser on September 15. So the savings doctrine would not apply here.)

So one would expect this to end the analysis as to Modern Parking. But the court was not done. The court also must “liberally construe” the September 15 notice of appeal, because if the notice of appeal is “reasonably clear what [the] appellant was trying to appeal from,” and if the respondent “could not possibly have been misled or prejudiced,” then the court may consider the appeal. (In re Joshua S. (2007) 41 Cal.4th 261, 272.) For example, where two orders are issued simultaneously, and the appellant identifies one order in the notice of appeal but not the other, the Court of Appeal will conclude the appellant intended to challenge both orders. (See, e.g., Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 321; In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.)

Here, of course, the orders were not entered the same day, but six days apart. And there is authority that the liberality doctrine would not permit construing a notice of appeal to include an order entered 44 days earlier. (In re J.F. (2019) 39 Cal.App.5th 70, 76–79.)

Ultimately, the court decided to “exercise its discretion” to extend its jurisdiction. The court noted that, based on the “unique circumstances” of the summary judgments being merely five days apart and being based on the Kaiser motion that Modern Parking had joined, there was “nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.”

The court also noted that Modern Parking was not prejudiced in any way, as it was served with all papers, and it filed a respondent's brief addressing the merits.


This language in the court’s analysis jumped out at me: there was “nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.” This suggests that the court started from the assumption that the notice of appeal encompasses all judgments—specified and unspecified—unless the record “logically and conclusively demonstrated” otherwise. This is contrary to authority that holds that each appealable judgment or order must be expressly specified—in either a single notice of appeal or multiple notices of appeal. (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 172-173.)

The court found it important that the plaintiff’s notice of appeal—using the Judicial Council form—checked the box indicating the appeal was taken from a “judgment after an order granting a summary judgment motion.” The court did not explain the significance, but presumably the court felt that, because cases ordinarily terminate with a single judgment, appellants should not be made to cower in fear of piecemeal judgments, taking appeals from each one.

Still, this represents one of the broadest applications of the liberality doctrine I’ve seen.

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 summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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