Legal News and Appellate Tips

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?

Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the court summarily denied the writ petition. Later, the court realized writ review was appropriate, and so treated the appeal as a writ.

The procedural curiosity probably came to nothing – the appeal-turned-writ was unsuccessful anyway – but it underscores how difficult it can be to get a writ petition off on the right foot.

The case prompts one to ask: How many other writ petitions that are legitimately worthy of writ review are getting waste-binned during the court's rushed initial review?

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The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. After Manson died in 2017, the probate court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Manson penpal and "murderabilia" collector Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. But the court exercised its discretion to treat the appeal as a writ petition because the improper genetic test "will involve an invasion of Freeman's privacy that cannot be undone," leaving Freeman with "no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.