You know it is deadly to file an appeal too late. But there is also such a thing as filing an appeal too early. In the recent case Moreles v. Herrera (D4d1 Apr. 12, 2022 no. D077032) 2022 WL 1090255 (nonpub. opn.), the court decided to save the appeal. But the decision is at the court’s whim. At the end of the post, I will tell you about a similar case where the court decided it would rather not save the premature appeal, and dismissed the appeal filed too early—same as if it had been filed too late.
In Moreles, son caused a fatal car accident while driving father’s car, killing the victim’s father, Moreles. At trial, Moreles failed to prove negligent entrustment against the defendant father. But then there was some discussion about the parties’ stipulating to a judgment amount of the $15,000 provided by Vehicle Code section 17151, the permissive-use statute.
The court entered judgment, but the judgment directed Moreles’s counsel to prepare further documentation concerning the $15,000 amount concerning Moreles’s permissive-use claim.
Moreles appealed from the judgment before the contemplated further documentation was finalized.
The court correctly noted the judgment calling for further documentation was not final, and therefore not appealable.
A judgment that disposes of fewer than all causes of action asserted against a party is not a final, appealable judgment. (See *Sullivan v. Delta Air Lines, Inc.* (1997) 15 Cal.4th 288, 307.)
The court noted “the ‘judgment’ that is the subject of this appeal appears to be interlocutory in nature, requiring the preparation of ‘the appropriate documentation for resolution’ of a remaining cause of action.
However, the appellate court may deem such a judgment final for the purpose of determining appealability if any remaining causes of action are subsequently resolved or dismissed. (Id. at pp. 308–309 [court may deem appeal is from final judgment where, for example, plaintiff dismisses with prejudice or waives the right to litigate any remaining cause of action].) Similarly, where a trial court makes a ruling resolving a cause of action but the ruling is not carried over into the formal judgment, “it is appropriate to preserve the appeal by amending the judgment to reflect the manifest intent of the trial court.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 289, fn. 1.)
Here is what happens when a non-final judgment later becomes final: “[I]f the plaintiff dismisses the remaining cause of action with prejudice or expressly waives on appeal the right to litigate an unresolved cause of action, the appellate court may either deem the judgment to be final or amend the judgment to reflect a dismissal of that cause of action with prejudice. (Sullivan, supra, 15 Cal.4th at pp. 308–309.)
When the Judgment Here, Leaving the Amount Undetermined, Was Later Satisfied, the Judgment Became Final, and the Court Saved the Appeal:
Here is how the non-finality of the judgment got resolved here. Recall that the judgment rejected Moreles’s negligent-entrustment claim but left the parties to supply further documentation (a contemplated stipulation) for the permissive-use claim.
In short: defendant father paid the $15,000 statutory cap. There was some dispute about acknowledgement of satisfaction of the judgment, but that ended in a hearing with the judge, where the judge confirmed that $15,000 was the correct amount.
That left nothing left to do on the judgment, meaning it was final. As the court observed, the appellate court may deem such a judgment final for the purpose of determining appealability if any remaining causes of action are subsequently resolved or dismissed. (Sullivan, supra, 15 Cal.4th at pp. 308–309 [court may deem appeal is from final judgment where, for example, plaintiff dismisses with prejudice or waives the right to litigate any remaining cause of action].) Similarly, where a trial court makes a ruling resolving a cause of action but the ruling is not carried over into the formal judgment, “it is appropriate to preserve the appeal by amending the judgment to reflect the manifest intent of the trial court.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 289, fn. 1.)
The court concluded: “In the interest of justice and efficiency, we therefore deem the October 19, 2019 judgment to be final....”
The Court of Appeal may choose to save your premature appeal. But do not count on it. Here is a case in point. This author handled the briefing in Ibrahim v. Liquipel, LLC (D4d3 Jun. 26, 2019) G055697 (nonpub opn.). That appeal was taken from an order denying a motion for leave to file a compulsory cross-complaint under Code of Civil Procedure section 426.30. But at the time the appeal was filed, another cross-claim was still pending against the appellant. So technically, the appeal was premature.
But a few months later, that cross-complaint was voluntarily dismissed, without prejudice. So at that point, the order on appeal was final.
So the same result obtained as in Moreles, right? The Court of Appeal saved the premature appeal, right?
Wrong. The court dismissed the appeal. The court reasoned that the issues involving the appellant were not fully resolved until the cross-complainant “dismissed the cross-complaint in which [appellant] was a cross-defendant.” The court decided not to exercise its discretion to save the appeal.
(Actually, the court then stated: “This [voluntary dismissal without prejudice] was the judgment from which he could have appealed.” But that is an incorrect statement of law. The court cited two cases in support, but neither support that proposition on appealability. To the contrary, “[i]t is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.) Gutkin goes on to cite Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761, which states: “there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.”)
The Upshot: If you are presented with an order that ordinarily would be appealable but may not be final, use extreme caution. Your safest bet may be to file a notice of appeal, even if it is premature. But you are not done yet. Watch carefully for further orders or actions that will render the order final. And as soon as that happens, take a second, precautionary appeal. Do not rely on the court’s good graces to save a premature appeal.
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 firstname.lastname@example.org or (714) 641-1232.
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