Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Appealability and Appealable Orders

SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them appealable in some situations but not in others.

The latest entry in the milieux is Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), where the trial court granted an anti-SLAPP motion to a cross-complaint—but only partially, so the case was not dismissed—and then the aggrieved cross-complainant appealed the resulting fee award. The Court of Appeal held that the fee award was not an appealable order, and so dismissed the appeal.

The court’s reasoning is straight to the point: The anti-SLAPP statute, Code of Civil Procedure section 425.16, says that orders granting or denying anti-SLAPP motions are appealable, but the statute says nothing about the appealability of fee awards. Without statutory authority making an order appealable, that’s the end of the analysis: anti-SLAPP fee orders are not appealable.

This seems sensible. But there are problems. One problem is the fact that this same court held that a SLAPP fee award was appealable in Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265. Another problem is that an award of SLAPP fees is a collateral order for money, and thus appealable under the collateral-order doctrine. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751.) The court’s responses to these problems are, in my view, less than satisfying.

Read More
Caution: A Dismissed Appeal Is with Prejudice

Caution: A Dismissed Appeal Is with Prejudice…unless the appeal is dismissed because it was premature.

If you remember one thing from this post, remember this: When an appeal is dismissed—even if dismissed voluntarily—usually that dismissal is with prejudice.

That is because of a statute, Code of Civil Procedure section 913. If you want the dismissal to be without prejudice, then the dismissal order has to expressly state “without prejudice.”

The order dismissing an earlier appeal of a pretrial sanctions order in Bush v. Cardinale (Sep. 27, 2022) No. A158757 (nonpub. opn.) did not expressly state “without prejudice.” So when the appellant appealed the sanctions order again—this time after a final judgment—the respondent pounced. The respondent filed a motion to dismiss the appeal. And the respondent cited section 913, arguing the prior dismissal of the appeal was with prejudice.

But for every rule, an exception. Here, the prior appeal was from a nonappealable order—i.e., from a sanctions order of under $5,000. That meant the Court of Appeal never had jurisdiction over the prior order, and thus could never have affirmed, which in turn meant that the dismissal could not have been prejudicial.

So the motion to dismiss was denied. But on the merits, the sanctions order was affirmed anyway.

Comment/Question for Appellate Attorneys: But what if the prior sanctions order—against the attorney, not the party—had been deemed appealable as a collateral order?

Read More
Can I Appeal This? Three Cases with Surprising Answers

When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)

Summary judgment orders are not appealable. It says so right in the statute. But it was held appealable in Reed v. Aviva USA Corp.

Minute orders have to be signed to be appealable. (Ok, not really: only minute orders dismissing a case must be signed, per CCP 581d.) Liang v. Shi held minute orders are appealable, with or without a signature.

A vexatious litigant denied permission to file a new lawsuit may appeal the denial order as an injunction order. There is precedent for that point. But Marriage of Deal was not having it: appeal dismissed.

Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement.

Read More
Denial of Fees for Defeating Anti-SLAPP Held Not Appealable, in Split of Authority

Almost any order having to do with an anti-SLAPP motion is appealable.

Almost.

In Kaplan v. Davidson (D2d7 Jul. 11, 2022 No. B312826) 2022 WL 2662982 (nonpub. opn.), Kaplan defeated Davidson’s anti-SLAPP motion. Orders granting or denying anti-SLAPPs are appealable.

Kaplan then moved for attorney fees. Orders granting anti-SLAPP fees are appealable.

But Kaplan’s motion for fees for defeating the anti-SLAPP was denied. And on appeal, Kaplan learned that this is the one order after an anti-SLAPP motion that is not appealable.

The court followed the holding of Doe v. Luster (2006) 145 Cal.App.4th 139, 142 (Doe). As that appeal involved both a denial of a SLAPP and a denial of SLAPP fees, the appellant thought it made sense to review both. The court took a hard pass: there is “no creditable argument that combining the two motions—one that results in an immediately appealable order; one that does not—somehow transforms the nonappealable order into one that is appealable.” (Id. at p. 150.)

No creditable argument? Had Doe gone too far? The Fourth District, Division Three thought so. In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the court thought it “absurd” that the SLAPP denial should be appealable but the SLAPP fee denial not appealable.

The unpublished Kaplan opinion sided with Doe. But whether the Second District thinks there is a “creditable argument” that SLAPP fee denials are appealable, there is an argument supported by published authority. Despite the conflict in authority, trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

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

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.

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 because the order “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 an appellant were to take the rule at face value that orders granting summary judgment are not appealable, then the appellant would file a motion under Code of Civil Procedure section 664 to have the clerk enter a judgment. But this would put the appellant to the risk of blowing the deadline to appeal from the order.

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.

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.

Read More
Vexatious Litigants Have No Right to Appeal Denial of Request to File New Action, Say Appellate Court Splitting from Authority

The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California judiciary and the State Bar.” Thomas, the court observes, now “stands alone on the silent battleground rattling his saber.”

No surprise, then that the trial court declared him a vexatious litigant. And once a court declares a litigant to be vexatious, Code of Civil Procedure sections 391 and 391.7 prevent the litigant from filing new litigation without obtaining permission from the presiding judge.

So Thomas requested permission. And it was denied. And so Thomas, going for a baker’s dozen, filed his 13th appeal from the denial.

But surprisingly, the court held that the prefiling denial under section 391 is not an appealable order. This is directly opposite published authority that a prefiling order under section 391.7 against a vexatious litigant “meets the definition of an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)

Prof. Shaun Martin, though agreeing Thomas’s appeal was frivolous, worries about denying appellate review: “We don't generally let a single judge decide things once and for all without any right to review whatsoever.”

Read More
No, Minute Orders Do Not Have to Be Signed to Be Appealable

I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable.

Liang involved an action to enforce a marital settlement agreement. The trial court awarded the mother $100,000 in fees. But the court made the award in an unsigned minute order, and then later signed a formal order.

The father contended the minute order was not appealable because it was unsigned. And in fact it is easy to find lots of cases that say an unsigned minute order is not appealable.

But nearly all of those cases (maybe all of the published ones) deal with unsigned orders of dismissal. And under Code of Civil Procedure section 581d, an order of dismissal must be signed. (E.g., Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.)

Outside of dismissal orders, however, there is no requirement that a minute order be signed to be final and appealable.

Note that the appellant here was represented by a very experienced certified appellate specialist. The rules of appellate procedure can trip up even the best attorneys. Best not go it alone.

Read More
High Court to Consider Relaxing Appealability Ruling

Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger.

Meinhardt held that the trial court’s order denying a police officer’s petition for a writ of mandamus was the appealable order, and by awaiting a formal judgment, he missed the deadline to appeal.

Meinhardt focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” And where further orders are contemplated, normally this undermines finality.

Look for the Supreme Court to take up these questions.

Read More
Untimely Appeal from Judgment Should Have Been Taken From Denial of Petition for Mandamus, Published Opinion Holds

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.

The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. Thus, the appeal was untimely and must be dismissed.

The court focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

The office made a lot of good arguments why the appeal was properly taken from the judgment, including the fact the statute says a judgment “shall” be entered. But the court was unpersuaded.

The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be, like orders after demurrers and MSJs. This may be a good time to inquire with an appellate specialist.

Read More
Counsel Admonished for Failing to Note Order on Appeal Was Not Appealable

The appellate court in People v. Williams (2022) 75 Cal.App.5th 584 admonished a criminal defendant’s attorney for failing to tell the court about a relevant case that had held the kind of order involved there was not appealable.

The court warned that any future violation “may warrant disciplinary review by the State Bar or other corrective action.”

The Upshot: If you are an appellant, this is a good reminder that the Court of Appeal pays close attention to your Statement of Appealability in your opening brief. Do not gloss over it. If there is doubt about appealability, be prepared to raise the collateral-order doctrine, or to seek review on a writ basis. If you are unsure whether your order is appealable, consider consulting an appellate specialist.

In the post I also note one thing that bothers me. Remember that California has no horizontal stare decisis: no Court of Appeal opinion is binding on any other Court of Appeal. So why do we require attorneys to tell appellate courts about other appellate decisions that they have no obligation to follow?

Read More
What Happens If You File Your Appeal Too Early?

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.

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.

Read More
Identifying Wrong Order in Notice of Appeal Results in Dismissal (in Contrast to Another Recent Case)

The court sympathizes with the appellant in Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.), whose two motions to vacate were denied. But the court holds that by listing only the second denial in the notice of appeal, the court could not reach the merits of the first denial.

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.... [But w]e 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.”

While I agree with the court’s outcome here (and its misgivings), this approach seems to be on the decline in recent years. In the article, I note two recent cases where courts have found creative ways to save similarly moribund appeals. Including time-travel — that is, ordering the trial court in the future to enter an appealable order dated in the past. (If this ploy was good enough to get Bill & Ted got out of jail, then apparently it is good enough for some appellate courts.)

Read More
1 2 3

Tags

Podcast (101)
Videos (90)
Appealability and Appealable Orders (34)
Legal Writing (26)
Abuse of Discretion (24)
Mischief (22)
Unpublished Opinions (21)
Anti-SLAPP (21)
Splits of Authority (20)
Notices of Appeal (19)
Stays on Appeal (19)
California Supreme Court (19)
Statements of Decision (18)
Waiver and Forfeiture (18)
Record on Appeal (17)
Attorney Fees (16)
Arbitration (16)
Judgment Enforcement (15)
Oral Argument (14)
Dismissals (14)
Sanctions (13)
Dissents (13)
Briefing (12)
Evidentiary Objections (12)
Exclusion of Evidence (12)
Trial Strategy (12)
Preliminary Injunctions (11)
Timeliness (11)
Family Law (11)
Timely and Untimely Appeals (11)
New Trial Motions (11)
Mootness (11)
Collateral Orders (11)
Jurisdiction (11)
Appellate Sanctions (11)
CCP 998 Offers (11)
Civility (10)
Experts (10)
Federal Courts (10)
Motions for Reconsideration (10)
Dismissed Appeals (9)
Writ Petitions (9)
Implied Findings (9)
Posttrial Motions (9)
Summary Judgments and Summary Adjudications (9)
Settlements (8)
Appealability (8)
Trial Procedure (8)
Disqualification (7)
Default Judgments (7)
Ninth Circuit (7)
Probate Appeals (7)
Respondent Arguments (7)
Stipulated Judgments (6)
Admission of Improper Evidence (6)
Appellate Bonds (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Standards of Review (6)
Mediation (6)
Motions to Vacate and Set Aside Judgments (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Depublished Opinions (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Trial Irregularities and Structural Errors (5)
Standing (5)
Petitions for Review (5)
Motions to Vacate (4)
Expert Opinions (4)
Trust and Probate (4)
Notices of Entry (4)
Frivolous Motions (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Excessive Damages (4)
Litigation Tips (4)
Disentitlement Doctrine (4)
Prejudicial Error (3)
Landlord Tenant (3)
Tentative Rulings (3)
Appealable Orders (3)
Frivolous Appeals (3)
Stays (3)
Recovery of Costs (3)
Demurrers (3)
Pretrial Procedure (3)
Appellate Briefing (3)
Summary Judgment (3)
Amicus Briefs (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Motions to Dismiss (3)
Jury Instructions (3)
Jury Waivers (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Contempt (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
Class Actions (2)
Record Designation (2)
Appeals Dismissed (2)
Premature Appeals (2)
ADA and Unruh Accessibility Actions (2)
Law and Motion (2)
Harmless Error (2)
Podcasts (2)
Pretrial Issues (2)
Stipulated Reversals (2)
PAGA Actions (2)
Alter Ego (2)
Legal Practice (2)
Remote Arguments (2)
Post Reversal Issues (2)
Comments (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Untimeliness (2)
Trial by Reference and Pro Tem Judges (2)
Invited Error (2)
Constitutional Law (2)
Forfeiture and Waiver (2)
Attorney Client Privilege (2)
Waiver (2)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Attorney Fees - CCP 1021.5 (1)
Third Parties and Nonparties (1)
Covid (1)
Settled Statements (1)
Typeface (1)
Attorney Feese (1)
Judicial Estoppel (1)
New Arguments (1)
Writs of Mandamus (CCP 1085) (1)
Clear and Convincing (1)
Family Court (1)
Mistrials (1)
Typography (1)
Attorney Misconduct (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
U.S. Supreme Court (1)
Bankruptcy (1)
Employment Law (1)
Judicial Notice (1)
Closing Argument (1)
Referral Fees (1)
Trade Restraints (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Benefits Obtained Trespass Damages (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Treble Damages (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Unsupported Arguments (1)
Ninth CircuitAbuse of Discretion (1)
Per Se Errors (1)
Trespass (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Anecdotes (1)
Common Interest Doctrine (1)
Restraining Orders (1)
Nonsuit (1)
Consenting to Judgments (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Waived and Forfeiture (1)
Civil Code 3334 (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Motions to Quash (1)
Preclusion (1)
Stare Decisis (1)
Civil Theft (1)
Exhaustion of Remedies (1)
Punitive Damages (1)
Support Awards (1)
Constitutional Litigation (1)
Free Exercise (1)
Landlore Tenant (0)
Appellate (0)
Split of Authority (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
Notice of Appeal (0)
crossmenuchevron-down