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: Dismissed Appeals

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?

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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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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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Three Mistakes to Avoid in Your Notice of Appeal

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:

1. He was appealing two orders, but only listed the date for one of them.

2. He checked the wrong box for the legal authority supporting the appeal.

3. He failed to attach the order to his Civil Case Information Statement.

Courts liberally construe the notice of appeal so that appellants don’t lose their appeals for these kinds of technical reason. But there are limits, and the appellant exceeded the limit here.

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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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If Your Case Is Dismissed for Failure to Prosecute, Simply Refile the Case

This topic comes up periodically, but it is still a little puzzling.
A complaint is filed. For one reason or another, the court dismisses the complaint without prejudice. But: the court does not sign the dismissal order. A dismissal order must be signed under Code of Civil Procedure section 581d. So the appeal from the unsigned dismissal is dismissed in Alaoui v. Vaynerman (D2d5 Nov. 8, 2021) 2021 WL 5175659 (no. B308421) (nonpub. opn.).

Here is why I say this is a little puzzling. True, section 581d requires that a mandatory dismissal be signed. But in other cases where the case is effectively over but the trial court forgets the ministerial act of entering a judgment, appellate courts may simply deem the nonappealable order to be appealable.

So, why didn't the court simply deem the unsigned dismissal to be a signed dismissal here?

The answer (I think) is because the Court of Appeal recognizes that the plaintiff, facing a dismissal without prejudice, may simply elect to refile the case. And if that can happen, then clearly the dismissal was not "final."

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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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Amended Judgment Does Not Revive Time to Appeal Prior Judgment or Fee Award; Appeal Dismissed

Here is a common question:

A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.

To seek reversal of the fee and cost award, which order, or orders, must be appealed?

Answer: All three.

The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.

(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)

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Court Dismisses Two Appeals in One Case: One as Moot, One as Premature

This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the […]

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