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?