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: Dismissals

Strategic Dismissals to Expedite Appeal Are No Longer Appealable, Ninth Circuit Holds

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders to expedite an appeal in California state court.

But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services , No. 19-55747 (9th Cir. Dec. 29, 2020) warns that federal Courts of Appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction.

If you are developing a strategy after a devastating order before a final judgment has been entered, that is an excellent time to consult appellate counsel.

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Appeal Dismissed Because Trial Court Forgot to Sign the Dismissal Order on Appeal

Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal.

Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable.

While this is technically the correct outcome, I cannot fault the plaintiff-appellant here. Technically nonappealable orders are often deemed appealable, and in such cases, failing to appeal would prove fatal. It just so happens that for this particular type of nonappealable order, the courts have decided never to treat them as appealable.

(But, being a cynic, and averse to malpractice exposure, I would not bank on it.)

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Can You Appeal an Order Denying Leave to Amend a Complaint?

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?

An order denying leave to amend is not directly appealable. So that's out.

You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.

There's always a writ petition. Good luck with that.

The solution: Strategic voluntary dismissal to expedite an appeal.

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Dismissal of Voluminous "Shotgun Complaint"​ Affirmed by 11th Circuit, Even Though Containing Some Valid Claims

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in […]

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