Legal News and Appellate Tips

What happens when the 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 gave way. And so the plaintiff, who lost on summary judgment and forgot to appeal the judgment, got it reversed anyway.

What happened was there were two summary judgments, entered six days apart. The plaintiff appealed from the first, but apparently neglected to appeal from the second. The court said that, ordinarily, this means that the second judgment was outside the court’s jurisdiction to review. But under the “liberality doctrine,” the court inferred the plaintiff intended to appeal from both, because there was “nothing that would logically and conclusively demonstrate plaintiffs intended to appeal solely from one of the judgments.”

This is about the broadest application of the liberality doctrine that I’ve seen. And it starts from the assumption that all judgments are contained in the notice of appeal unless something in the record “logically and conclusively demonstrate[s]” otherwise. That seems off to me.

The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused to declare Shaefers a vexatious litigant because one of his lawsuits was a cross-complaint and the trial court thought that didn’t count. It does count.

But how did Blizzard convince the court to grant review of the order? Parting ways with a First District opinion from earlier this year, the Second District here held that an order declaring a person to be a vexatious litigant is the equivalent of an injunction. And injunction orders are appealable under section 904.1. So the Blizzard court held the order was appealable.

My view: I’m not so sure. Orders that restrict or require actions in the real world are different from orders that restrict or require actions in court world. Orders requiring a corporation to pay dividends? Injunction, of course, thus appealable. Orders requiring a corporation to produce documents? Also an injunction? Not a chance.

Yet what is the difference? The only difference I can detect is one affects the real world, and the other affects court world. Orders governing conduct in court world are not going to be considered injunctions. So consider this holding involving vexatious-litigant determinations a one-off.

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.”

The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases on this point, and the Ibbetson opinion, while trying to reconcile to disparate cases, potential added to the confusion.

The important takeways:

1. Don’t count on anti-SLAPP fee awards being independently appealable.

2. But don’t count out the possibility they might be appealable as collateral orders.

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.

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?

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.

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.”

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.

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.”

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.

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.

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.