When Appellate Rules Lie: Order Granting Summary Judgment, Which Is Not Appealable, Held Appealable Anyway

Timothy Kowal, Esq.
July 7, 2022

Appellate rules are treated as jurisdictional.* So it is important for appellate rules to be very clear. One such nice and clear rule is: Orders granting summary judgment are not appealable. (Code Civ. Proc., § 437c, subd. (m)(1); Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)

Except, the rule is a lie, as it proved in Reed v. Aviva USA Corp. (D1d1 Jun. 16, 2022 no. A158535) 2022 WL 2165479 (nonpub. opn.). The trial court granted defendants’ motion for summary judgment. But for some reason, the court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment.

The Court of Appeal acknowledged that an order granting summary judgment is not appealable. But the court reviewed the order anyway:

“But because the trial court's order granting summary judgment stated that Reed's claims against Aviva were “DISMISSED WITH PREJUDICE in their entirety,” we construe the order as an appealable judgment because it showed a clear intent to finally dispose of Reed's complaint against respondents.”


Here is the problem with making exceptions to jurisdiction rules like this. If the rule is that orders granting summary judgment are not appealable, then what the plaintiff needed to do was to file a motion under Code of Civil Procedure section 664 to have the clerk enter a judgment. It is a ministerial duty that by law must be performed.

But say the plaintiff, after receiving the file-stamped order mailed by the clerk, has been waiting around a few weeks expecting the imminent entry of a judgment before realizing it is not coming. Then the plaintiff files a motion to enter judgment on a noticed motion basis. By the time the trial court rules grants the motion and the clerk enters the judgment, it is quite likely that 60 days have passed.

So now the plaintiff is in a darkly ironic conundrum: On the one hand, the plaintiff has blown the deadline to appeal from the order, which, on its face, showed a clear intent to finally dispose of the complaint, and thus was appealable under the logic of Saben and many other cases like it. And as we know, the deadline to take an appeal from an appealable order is jurisdictional.

But on the other hand, the plaintiff now has a judgment, which is explicitly an appealable order under Code of Civil Procedure section 904.1(a)(1).

What does this mean? That there two appealable judgments? And the latter judgment restarts the time to appeal? But that would violate the rule — again, jurisdictional — that the time to appeal cannot be restarted by a subsequent order or amendment. (But see here.)

What the Court of Appeal should have done here was to catch the problem when the plaintiff filed the Civil Case Information Statement. The court should have instructed the plaintiff to go back to the trial court and get a judgment. Yes, it may seem fussy. But jurisdictional rules are fussy. They impose heavy burdens on litigants. So something seems off when courts treat them lightly.

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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