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.

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Tag: Appealability and Appealable Orders

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.

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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.

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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?

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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.

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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.)

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Order Granting Withdrawal of Attorney Is Not Appealable

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

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Premature Appeal May Be Saved, But Get the Judgment Entered

Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).

That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.

While the court was rather fussy about the requirement here, in the post I mention some of the creative ways that other courts — if sufficiently motivated to reach the merits — will save an appeal. My favorite: the appellate court can order the trial judge to enter a nunc pro tunc judgment, and then the appeal can proceed as though taken from that future judgment. (Someone, at last, found a way to apply the deep time-travel lessons of Bill and Ted’s Excellent Adventure!)

Question for #AppellateLinkedIn: Do appellate courts in other states get this creative?

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Denial of Motion to Vacate Default Was Res Judicata, Not Subject to a Second Challenge

When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.

Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.

The Upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.

Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.

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A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable

CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” The link is below. The article was originally published on my blog ( https://bit.ly/3gklJjJ ). The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087.

The upshot is when you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

Here is the link to the CEB article: https://bit.ly/35AvdFp

Here is the link to the original blog post: https://bit.ly/3gklJjJ

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In a Confusing Appellate Opinion, Denial of Post-Settlement Fees Held Not Appealable

An order enforcing a settlement agreement is an appealable order, but what about an order *denying* enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”[Denial of Motion to Enforce a Settlement Held Appealable]....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement matters under Code of Civil Procedure section 664.6 entered as judgments: that way, there’s no doubt as to their appealability. But that court gave some leeway and concluded there was “no functional difference” between a grant and a denial of costs.

But the Second District gave no such leeway in its published opinion in *[Sanchez v. Westlake Services, LLC] (D2d7 Jan. 18, 2022 No. B308435) ___ Cal.Rptr.3d ___, 2022 WL 1522087. In *Sanchez*, the parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees.

***The Upshot:*** When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.

And there are many trap doors when your appeal is mixed up with a dismissal.

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Denial of Motion to Enforce a Settlement Held Appealable Because it “Functionally Terminated” the Litigation

Can you appeal an order on a motion to enforce a settlement agreement? And if so, why aren’t these orders listed in the appealable orders statute of [Code of Civil Procedure section 904.1](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=904.1&lawCode=CCP)?

The functional answer to the question is yes: orders on motions to enforce a settlement probably are appealable. But the court in *[Rezzadeh v. Chiu*](https://casetext.com/case/rezzadeh-v-chiu?tab=keyword&jxs=&sort=relevance&type=case&resultsNav=false) (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.) suggests the reason this is not obvious in the statute is that litigants are not supposed to have to take appeals from the orders. Instead, trial courts are supposed to be entering *judgments* on those orders. And then the appeal, naturally, would be taken from the judgment.

Settling a case is not the end. You may need to be prepared to invoke your appellate rights until a settlement is fully executed.

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The Trouble with Voluntary Dismissals

There are a few different ways a lawsuit can end. Judgments we know about, and settlements are common. But what happens when the plaintiff just up and dismisses the lawsuit? Can the defendant get costs? And is the cost award appealable?

There is a split of authority on these questions, as noted in Thomas v. St. Joseph Health System (D4d3 Oct. 20, 2021) 2021 WL 4889873 (no. G059408) (nonpub. opn.). Seeing the writing on the wall on the defendants' motion to quash based on personal jurisdiction, the doctor-plaintiff dismissed his right-to-practice and unfair-competition lawsuit (which he would later refile in Texas). The defendants recovered the significant costs they had incurred through a number of depositions during jurisdictional discovery, and the plaintiff appealed.

The court noted a split of authority, but came down on the side of finding a cost order entered after a voluntary dismissal without prejudice is appealable as a final judgment. (But the court went on to affirm the cost order.)

The appealability holding seems to me clearly correct, with all due respect to the contrary authorities.

But I offer a few words of caution about strategic voluntary dismissals. When the "writing is on the wall" as it was in this case, authorities suggest the time to dismiss without prejudice is over.

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