The basics of
California Appeals —
two not-so-simple
rules:
Filing a timely notice
of appeal and
designating a proper
record - page 2
By Jeffrey Isaac Ehrlich |
Phone: (818) 905-3970 |
Email: The Ehrlich Firm |
Download .doc
Next Page | 1 | 2 | 3 | 4 | 5 |
Previous Page
How to comply with Rule 1,
Step 1— Know what to
appeal
“There can be but one final
judgment in an action, and
that is one which in effect
ends the suit in the court in
which it is entered, and
finally determines the rights
of the parties in relation to
the matter in controversy.”
(San Joaquin County Dept.
of Child Support Services v.
Winn (2008) 163 Cal.App.
4th 296, 300, 77 Cal.Rptr.3d
470, 472.) Under the “one
final judgment” rule, an
appeal will only lie from the
final judgment; not from
intermediate rulings.
(Kinsmith Financial Corp. v.
Gilroy (2003) 105 Cal.App.
4th 447, 452, 129 Cal.Rptr.
2d 478, 481; Maier Brewing
Co. v. Pacific Nat. Fire Ins.
Co. (1961) 194 Cal.App.2d
494, 497, 15 Cal.Rptr. 177,
179.)
The flip side of the one-final
judgment rule is Rule 1,
above — that if a judgment
or order is appealable,
aggrieved parties must file a
timely appeal or forever lose
the opportunity to obtain
appellate court review.
(Eisenberg, Horvitz &
Weiner, California Practice
Guide — Civil Appeals and
Writs (Rutter 2009 rev.)
(“Civil Appeals”)§ 2:13,
emphasis in text.) This is a
jurisdictional principle:
Appellate courts have no
discretion to entertain
appellate or writ review
of appealable judgments
or orders from which a
timely appeal was not
taken. (Id., citing Code Civ.
Proc. § 906; Marriage of
Weiss (1996) 42 Cal.App.4th
106, 119, 49 Cal. Rprt. 2d
339, 348.) A related rule is
that when appellate
review of a particular
order is mandated by writ
(a “statutory writ”) and
the statute provides that
this is the exclusive
manner to obtain review,
the failure to file a timely
statutory writ will forfeit
the right to later appellate
review. (Civil Appeals, ¶ 15:
96.1.)
The potential trap for trial
lawyers then, is that a court
issues a ruling or order that
is deemed final or
appealable, and the lawyer
fails to appeal at the time,
thinking instead that the
matter will be addressed in
the appeal from the final
judgment.
There is no easy, all-
purpose rule to apply to
avoid this problem. Instead,
trial lawyers can protect
themselves by (a) being
familiar with section 904.1 of
the Code of Civil Procedure,
which sets forth which orders
are appealable; and (b)
having a passing
understanding of the
workings of the one-final
judgment rule, and its
exceptions, which allow
appeals from less-than-final
judgments or orders.
The most common
appealable orders listed in
section 904.1 are these:
From a judgment
From an order
after final
judgment (such
as an order
awarding
attorney’s fees
post-trial)
From an order granting a
new trial, or denying a
motion for judgment
notwithstanding the verdict
From an order
granting or
dissolving an
injunction, or
refusing to grant or
dissolve an
injunction
From a sanctions order
directing the payment of
more than $5,000
From an order granting or
denying an “Anti-SLAPP”
motion under Code Civ.
Proc. section 416.26
From an order appointing a
receiver
From an order granting a
right-to-attach order or
discharging or refusing to
discharge an attachment.
Note that the term
“judgment” in section
904.1 includes an
appealable order. (See
CRC, Rule 8.104(f).) An
order of dismissal, for
example, is appealable when
it is in writing, signed by the
court, and filed in the action.
(Code Civ. Proc. § 581d.)
But an order sustaining a
demurrer without leave to
amend is not an appealable
order. (Sisemore v. Master
Financial, Inc. (2007) 151
Cal.App.4th 1386, 1396.)
Rather, the appeal
lies from the order of
dismissal made
following the order
sustaining the
demurrer. (Id.) “But
when the trial court has
sustained a demurrer to all
of the complaint's causes
of action, appellate courts
may deem the order to
incorporate a judgment of
dismissal, since all that
is left to make the
order appealable is
the formality of the
entry of a
dismissal order
or judgment.”
(Melton v. Boustred (2010)
183 Cal.App.4th 521, 544.)
Courts generally only invoke
this rule to save a premature
appeal. But it could
conceivably be used to
argue that an appeal was
untimely in a case where the
only order issued was the
order sustaining the
demurrer, and no dismissal
was entered.
Similarly, a statement of decision
is generally not an appealable
order. (Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal.4th
894, 901.) This is because courts
generally embody their final
rulings in orders or judgments,
not a statement of decision. (Id.)
But if a written statement of
decision is signed and filed, and
satisfies the requirements of
Code Civ. Proc. § 581d, it can be
treated as appealable order if no
further order or judgment follows.
(Id.)
The list of appealable
orders in section 904.1 is
not exhaustive,
unfortunately. The Family
Code and the Probate Code
have specific provisions that
make certain orders
appealable. So too does the
Code of Civil Procedure,
such as section 1294, which
makes orders denying or
dismissing a petition to
compel arbitration, or
dismissing a motion to
confirm, correct or vacate an
arbitration award appealable.
California Appeals —
two not-so-simple
rules:
Filing a timely notice
of appeal and
designating a proper
record - page 2
By Jeffrey Isaac Ehrlich |
Phone: (818) 905-3970 |
Email: The Ehrlich Firm |
Download .doc
Next Page | 1 | 2 | 3 | 4 | 5 |
Previous Page
How to comply with Rule 1,
Step 1— Know what to
appeal
“There can be but one final
judgment in an action, and
that is one which in effect
ends the suit in the court in
which it is entered, and
finally determines the rights
of the parties in relation to
the matter in controversy.”
(San Joaquin County Dept.
of Child Support Services v.
Winn (2008) 163 Cal.App.
4th 296, 300, 77 Cal.Rptr.3d
470, 472.) Under the “one
final judgment” rule, an
appeal will only lie from the
final judgment; not from
intermediate rulings.
(Kinsmith Financial Corp. v.
Gilroy (2003) 105 Cal.App.
4th 447, 452, 129 Cal.Rptr.
2d 478, 481; Maier Brewing
Co. v. Pacific Nat. Fire Ins.
Co. (1961) 194 Cal.App.2d
494, 497, 15 Cal.Rptr. 177,
179.)
The flip side of the one-final
judgment rule is Rule 1,
above — that if a judgment
or order is appealable,
aggrieved parties must file a
timely appeal or forever lose
the opportunity to obtain
appellate court review.
(Eisenberg, Horvitz &
Weiner, California Practice
Guide — Civil Appeals and
Writs (Rutter 2009 rev.)
(“Civil Appeals”)§ 2:13,
emphasis in text.) This is a
jurisdictional principle:
Appellate courts have no
discretion to entertain
appellate or writ review
of appealable judgments
or orders from which a
timely appeal was not
taken. (Id., citing Code Civ.
Proc. § 906; Marriage of
Weiss (1996) 42 Cal.App.4th
106, 119, 49 Cal. Rprt. 2d
339, 348.) A related rule is
that when appellate
review of a particular
order is mandated by writ
(a “statutory writ”) and
the statute provides that
this is the exclusive
manner to obtain review,
the failure to file a timely
statutory writ will forfeit
the right to later appellate
review. (Civil Appeals, ¶ 15:
96.1.)
The potential trap for trial
lawyers then, is that a court
issues a ruling or order that
is deemed final or
appealable, and the lawyer
fails to appeal at the time,
thinking instead that the
matter will be addressed in
the appeal from the final
judgment.
There is no easy, all-
purpose rule to apply to
avoid this problem. Instead,
trial lawyers can protect
themselves by (a) being
familiar with section 904.1 of
the Code of Civil Procedure,
which sets forth which orders
are appealable; and (b)
having a passing
understanding of the
workings of the one-final
judgment rule, and its
exceptions, which allow
appeals from less-than-final
judgments or orders.
The most common
appealable orders listed in
section 904.1 are these:
From a judgment
From an order
after final
judgment (such
as an order
awarding
attorney’s fees
post-trial)
From an order granting a
new trial, or denying a
motion for judgment
notwithstanding the verdict
From an order
granting or
dissolving an
injunction, or
refusing to grant or
dissolve an
injunction
From a sanctions order
directing the payment of
more than $5,000
From an order granting or
denying an “Anti-SLAPP”
motion under Code Civ.
Proc. section 416.26
From an order appointing a
receiver
From an order granting a
right-to-attach order or
discharging or refusing to
discharge an attachment.
Note that the term
“judgment” in section
904.1 includes an
appealable order. (See
CRC, Rule 8.104(f).) An
order of dismissal, for
example, is appealable when
it is in writing, signed by the
court, and filed in the action.
(Code Civ. Proc. § 581d.)
But an order sustaining a
demurrer without leave to
amend is not an appealable
order. (Sisemore v. Master
Financial, Inc. (2007) 151
Cal.App.4th 1386, 1396.)
Rather, the appeal
lies from the order of
dismissal made
following the order
sustaining the
demurrer. (Id.) “But
when the trial court has
sustained a demurrer to all
of the complaint's causes
of action, appellate courts
may deem the order to
incorporate a judgment of
dismissal, since all that
is left to make the
order appealable is
the formality of the
entry of a
dismissal order
or judgment.”
(Melton v. Boustred (2010)
183 Cal.App.4th 521, 544.)
Courts generally only invoke
this rule to save a premature
appeal. But it could
conceivably be used to
argue that an appeal was
untimely in a case where the
only order issued was the
order sustaining the
demurrer, and no dismissal
was entered.
Similarly, a statement of decision
is generally not an appealable
order. (Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal.4th
894, 901.) This is because courts
generally embody their final
rulings in orders or judgments,
not a statement of decision. (Id.)
But if a written statement of
decision is signed and filed, and
satisfies the requirements of
Code Civ. Proc. § 581d, it can be
treated as appealable order if no
further order or judgment follows.
(Id.)
The list of appealable
orders in section 904.1 is
not exhaustive,
unfortunately. The Family
Code and the Probate Code
have specific provisions that
make certain orders
appealable. So too does the
Code of Civil Procedure,
such as section 1294, which
makes orders denying or
dismissing a petition to
compel arbitration, or
dismissing a motion to
confirm, correct or vacate an
arbitration award appealable.
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CCP 904. An appeal may be taken in a civil
action or proceeding as provided in Sections
904.1, 904.2, 904.3, and 904.5.
904.1. (a) An appeal, other than in a limited civil case, is to the court of
appeal. An appeal, other than in a limited civil case, may be taken from any
of the following:
(1) From a judgment, except (A) an interlocutory
judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a
judgment of contempt that is made final and conclusive by Section
1222.
[Section 1222. (Amended by Stats. 1951, Ch. 1737.)
Cite as: Cal. Civ. Proc. Code §1222.
The judgment and orders of the court or judge, made in cases of contempt,
are final and conclusive.]
(2) From an order made after a judgment made
appealable by paragraph (1).
(3) From an order granting a motion to quash service of summons or granting a
motion to stay the action on the ground of inconvenient forum, or from a written
order of dismissal under Section 581d following an order granting a motion to
dismiss the action on the ground of inconvenient forum.
(4) From an order granting a new trial or denying a motion for judgment
notwithstanding the verdict.
(5) From an order discharging or refusing to discharge an attachment or granting a
right to attach order.
(6) From an order granting or dissolving an injunction, or
refusing to grant or dissolve an injunction.
(7) From an order appointing a receiver.
(8) From an interlocutory judgment, order, or decree, hereafter made or entered in
an action to redeem real or personal property from a mortgage thereof, or a lien
thereon, determining the right to redeem and directing an accounting.
(9) From an interlocutory judgment in an action for partition determining the rights
and interests of the respective parties and directing partition to be made.
(10) From an order made appealable by the provisions of the Probate Code or the
Family Code.
(11) From an interlocutory judgment directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five thousand dollars
($5,000).
(12) From an order directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five
thousand dollars ($5,000).
(13) From an order granting or denying a special motion to strike
under Section 425.16. [SLAPP]
(b) Sanction orders or judgments of five thousand dollars ($5,000)
or less against a party or an attorney for a party may
be reviewed on an appeal by that party after entry of
final judgment in the main action, or, at the discretion of the
court of appeal, may be reviewed upon petition for an extraordinary
writ.
904.2. An appeal of a ruling by a superior court judge or other
judicial officer in a limited civil case is to the appellate
division of the superior court. An appeal of a ruling by a superior court judge
or other judicial officer in a limited civil case may be taken from any of the following:
(a) From a judgment, except
(1) an interlocutory judgment, or (2) a judgment of contempt that is made final and
conclusive by Section 1222.
(b) From an order made after a judgment made appealable by subdivision (a).
(c) From an order changing or refusing to change the place of trial.
(d) From an order granting a motion to quash service of summons or granting a
motion to stay the action on the ground of inconvenient forum, or from a written
order of dismissal under Section 581d following an order granting a motion to
dismiss the action on the ground of inconvenient forum.
(e) From an order granting a new trial or denying a motion for judgment
notwithstanding the verdict.
(f) From an order discharging or refusing to discharge an attachment or granting a
right to attach order.
(g) From an order granting or dissolving an injunction, or refusing to grant or
dissolve an injunction.
(h) From an order appointing a receiver.
904.3. An appeal shall not be taken from a judgment of the appellate division of a
superior court granting or denying a petition for issuance of a writ of mandamus or
prohibition directed to the superior court, or a judge thereof, in a limited civil case
or a misdemeanor or infraction case. An appellate court may, in its discretion, upon
petition for extraordinary writ, review the judgment.
904.5. Appeals from the small claims division of a superior court shall be governed
by the Small Claims Act (Chapter 5.5 (commencing with Section 116.110) of Title 1
of Part 1).
CCP 904.1 (a) (6)
action or proceeding as provided in Sections
904.1, 904.2, 904.3, and 904.5.
904.1. (a) An appeal, other than in a limited civil case, is to the court of
appeal. An appeal, other than in a limited civil case, may be taken from any
of the following:
(1) From a judgment, except (A) an interlocutory
judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a
judgment of contempt that is made final and conclusive by Section
1222.
[Section 1222. (Amended by Stats. 1951, Ch. 1737.)
Cite as: Cal. Civ. Proc. Code §1222.
The judgment and orders of the court or judge, made in cases of contempt,
are final and conclusive.]
(2) From an order made after a judgment made
appealable by paragraph (1).
(3) From an order granting a motion to quash service of summons or granting a
motion to stay the action on the ground of inconvenient forum, or from a written
order of dismissal under Section 581d following an order granting a motion to
dismiss the action on the ground of inconvenient forum.
(4) From an order granting a new trial or denying a motion for judgment
notwithstanding the verdict.
(5) From an order discharging or refusing to discharge an attachment or granting a
right to attach order.
(6) From an order granting or dissolving an injunction, or
refusing to grant or dissolve an injunction.
(7) From an order appointing a receiver.
(8) From an interlocutory judgment, order, or decree, hereafter made or entered in
an action to redeem real or personal property from a mortgage thereof, or a lien
thereon, determining the right to redeem and directing an accounting.
(9) From an interlocutory judgment in an action for partition determining the rights
and interests of the respective parties and directing partition to be made.
(10) From an order made appealable by the provisions of the Probate Code or the
Family Code.
(11) From an interlocutory judgment directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five thousand dollars
($5,000).
(12) From an order directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five
thousand dollars ($5,000).
(13) From an order granting or denying a special motion to strike
under Section 425.16. [SLAPP]
(b) Sanction orders or judgments of five thousand dollars ($5,000)
or less against a party or an attorney for a party may
be reviewed on an appeal by that party after entry of
final judgment in the main action, or, at the discretion of the
court of appeal, may be reviewed upon petition for an extraordinary
writ.
904.2. An appeal of a ruling by a superior court judge or other
judicial officer in a limited civil case is to the appellate
division of the superior court. An appeal of a ruling by a superior court judge
or other judicial officer in a limited civil case may be taken from any of the following:
(a) From a judgment, except
(1) an interlocutory judgment, or (2) a judgment of contempt that is made final and
conclusive by Section 1222.
(b) From an order made after a judgment made appealable by subdivision (a).
(c) From an order changing or refusing to change the place of trial.
(d) From an order granting a motion to quash service of summons or granting a
motion to stay the action on the ground of inconvenient forum, or from a written
order of dismissal under Section 581d following an order granting a motion to
dismiss the action on the ground of inconvenient forum.
(e) From an order granting a new trial or denying a motion for judgment
notwithstanding the verdict.
(f) From an order discharging or refusing to discharge an attachment or granting a
right to attach order.
(g) From an order granting or dissolving an injunction, or refusing to grant or
dissolve an injunction.
(h) From an order appointing a receiver.
904.3. An appeal shall not be taken from a judgment of the appellate division of a
superior court granting or denying a petition for issuance of a writ of mandamus or
prohibition directed to the superior court, or a judge thereof, in a limited civil case
or a misdemeanor or infraction case. An appellate court may, in its discretion, upon
petition for extraordinary writ, review the judgment.
904.5. Appeals from the small claims division of a superior court shall be governed
by the Small Claims Act (Chapter 5.5 (commencing with Section 116.110) of Title 1
of Part 1).
CCP 904.1 (a) (6)
“collateral” final judgment or order
strike answer
Appealability or Reviewability of
Particular Types of Decisions ...
appeals.uslegal.com › Appeals
HomeHowever, the consolidation
order is appealable under the
collateral order doctrine if an
interlocutory order ... Review of the
order is permitted only from final
judgment. ... Similarly, an order
striking an answer is also not
appealable directly.
Oklahoma's Collateral Order
Doctrine? Appealability of
Prejudgment ...
www.okbar.
org/obj/articles_04/031304ellis.htmA
"final order" is defined by 12 O.S.
2001, § 953.5 Presumably, 12 O.S.
2001, ... his third-floor window.9
Plaintiff's attorneys moved to strike
defendants' answers, ...
Res judicata - Wikipedia, the free
encyclopedia
en.wikipedia.
org/wiki/Res_judicataOnce a final
judgment has been handed down
in a lawsuit, subsequent judges
who are ... in any court of the
United States or of any state than
according to the rules of law. ...
Res judicata is intended to
strike a balance between
competing interests. ... Under
collateral estoppel, once a
court has decided an issue of
fact or law ...
[PDF]
ADA - Hawaii State Judiciary
www.courts.state.hi.us/docs/...
/CAAP-12-0000172dsmada.pdfFile
Format: PDF/Adobe Acrobat -
Quick View
February 28, 2012 order striking
Appellant Walker's answer and
counterclaim is an ... has not
yet entered an appealable final
order or final judgment in this
case. ... (the Forgay doctrine),
the collateral order doctrine,
and HRS. § 641-1(b), the ...
[PDF]
1132/03 - Maryland state court
system
www.courts.state.md.
us/opinions/cosa/2004/1132s03.pdfFile
Format: PDF/Adobe Acrobat - Quick View
Jul 2, 2004 – Collateral Estoppel -
Final Judgment - Pending Appeal.
A pending ... To answer these and
other questions posed by the
parties to ... order lists the four
issues that were before it: (1)
“Does the ...... strike, struck the
petition.
THE IMMEDIATE APPEALABILITY
OF RULE 11 SANCTIONS.
https://litigation-essentials.
lexisnexis.com/.../app?...The
collateral order doctrine also was
created in light of the Court's
desire to give the final ... 21 For
example, an order granting
summary judgment is a final
judgment ..... it learned that part
of the defendant's answer was not
well-grounded in fact. .....
immediate appellate review of an
order to strike a portion of a
complaint).
CHAPTER 3. ORDERS FROM
WHICH ... - Pennsylvania Code
www.pacode.
com/secure/data/210/chapter3/chap3toc.htmlIf
orders opening, vacating or striking off a
judgment are sought in the alternative, .... Rule
313 (Collateral Orders), Rule 341 (Final Orders;
Generally), and Rule 342 ..... (2) an order
denying a defendant leave to amend his
answer to plead an ...
[PDF]
IN THE COURT OF APPEALS OF
IOWA No. 1-821 / 11-0256 Filed ...
www.iowacourts.
gov/court_of_appeals/Recent.../1-821.
pdfFile Format: PDF/Adobe Acrobat -
Quick View
Nov 23, 2011 – Intervenor, David
Aschliman, appeals from an order
dismissing his counterclaim and
striking his affirmative defenses in
a suit where default ... not from a
final judgment; it is therefore
dismissed. ... failed to appear or
file an answer. ... collateral attack
on the existing judgment, and must
the intervenor's case ...
Taliaferro v. Taliaferro 180 Cal.
App. 2d 44 :: Volume 180 :: Cal.
App ...
law.justia.com › ... › Cal. App. 2d ›
Volume 180By his motion made on
February 24, 1958, appellant
sought to strike ... 1949, was void
as a collateral attack on a final
judgment; (2) The order of June
22, 1949, ...
strike answer
Appealability or Reviewability of
Particular Types of Decisions ...
appeals.uslegal.com › Appeals
HomeHowever, the consolidation
order is appealable under the
collateral order doctrine if an
interlocutory order ... Review of the
order is permitted only from final
judgment. ... Similarly, an order
striking an answer is also not
appealable directly.
Oklahoma's Collateral Order
Doctrine? Appealability of
Prejudgment ...
www.okbar.
org/obj/articles_04/031304ellis.htmA
"final order" is defined by 12 O.S.
2001, § 953.5 Presumably, 12 O.S.
2001, ... his third-floor window.9
Plaintiff's attorneys moved to strike
defendants' answers, ...
Res judicata - Wikipedia, the free
encyclopedia
en.wikipedia.
org/wiki/Res_judicataOnce a final
judgment has been handed down
in a lawsuit, subsequent judges
who are ... in any court of the
United States or of any state than
according to the rules of law. ...
Res judicata is intended to
strike a balance between
competing interests. ... Under
collateral estoppel, once a
court has decided an issue of
fact or law ...
[PDF]
ADA - Hawaii State Judiciary
www.courts.state.hi.us/docs/...
/CAAP-12-0000172dsmada.pdfFile
Format: PDF/Adobe Acrobat -
Quick View
February 28, 2012 order striking
Appellant Walker's answer and
counterclaim is an ... has not
yet entered an appealable final
order or final judgment in this
case. ... (the Forgay doctrine),
the collateral order doctrine,
and HRS. § 641-1(b), the ...
[PDF]
1132/03 - Maryland state court
system
www.courts.state.md.
us/opinions/cosa/2004/1132s03.pdfFile
Format: PDF/Adobe Acrobat - Quick View
Jul 2, 2004 – Collateral Estoppel -
Final Judgment - Pending Appeal.
A pending ... To answer these and
other questions posed by the
parties to ... order lists the four
issues that were before it: (1)
“Does the ...... strike, struck the
petition.
THE IMMEDIATE APPEALABILITY
OF RULE 11 SANCTIONS.
https://litigation-essentials.
lexisnexis.com/.../app?...The
collateral order doctrine also was
created in light of the Court's
desire to give the final ... 21 For
example, an order granting
summary judgment is a final
judgment ..... it learned that part
of the defendant's answer was not
well-grounded in fact. .....
immediate appellate review of an
order to strike a portion of a
complaint).
CHAPTER 3. ORDERS FROM
WHICH ... - Pennsylvania Code
www.pacode.
com/secure/data/210/chapter3/chap3toc.htmlIf
orders opening, vacating or striking off a
judgment are sought in the alternative, .... Rule
313 (Collateral Orders), Rule 341 (Final Orders;
Generally), and Rule 342 ..... (2) an order
denying a defendant leave to amend his
answer to plead an ...
[PDF]
IN THE COURT OF APPEALS OF
IOWA No. 1-821 / 11-0256 Filed ...
www.iowacourts.
gov/court_of_appeals/Recent.../1-821.
pdfFile Format: PDF/Adobe Acrobat -
Quick View
Nov 23, 2011 – Intervenor, David
Aschliman, appeals from an order
dismissing his counterclaim and
striking his affirmative defenses in
a suit where default ... not from a
final judgment; it is therefore
dismissed. ... failed to appear or
file an answer. ... collateral attack
on the existing judgment, and must
the intervenor's case ...
Taliaferro v. Taliaferro 180 Cal.
App. 2d 44 :: Volume 180 :: Cal.
App ...
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Volume 180By his motion made on
February 24, 1958, appellant
sought to strike ... 1949, was void
as a collateral attack on a final
judgment; (2) The order of June
22, 1949, ...
Sanctions Caselaw
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Cal. Prac. Guide Civ. App. & Writs Ch. 2-D
California Practice Guide: Civil Appeals and Writs
Jon B. Eisenberg, Ellis J. Horvitz, and Justice Howard B. Wiener (Ret.)
Chapter 2. Appealability And Standing To Appeal
d. [2:339] Waiver as penalty: A party who has
purposefully defied court orders in the case, or a
corporate party whose powers are suspended for
nonpayment of franchise taxes, may be penalized by
denial of the right to take an appeal:
(1) [2:340] Wilful disobedience of court orders (“disentitlement doctrine”):
Appellate courts have inherent power to dismiss or stay an appeal taken by a
party who is in contempt of a trial court order issued in the action or who,
although not adjudged in contempt, has wilfully disobeyed court orders in the
action. [TMS, Inc. v. Aihara (1999) 71 CA4th 377, 379, 83 CR2d 834, 834–835
(citing text) (judgment debtors' wilful failure to comply with court order to answer
postjudgment interrogatories); Say & Say v. Castellano (1994) 22 CA4th 88, 94,
27 CR2d 270, 273 (3 contempt adjudications); Alioto Fish Co., Ltd. v. Alioto (1994)
27 CA4th 1669, 1682–1683, 34 CR2d 244, 250 (no formal contempt but persistent
defiance of court orders)]
This penalty (so-called “disentitlement doctrine”) is particularly likely to
be invoked where the appeal arises out of the very order (or orders) the
party has disobeyed.
[Maura Larkins comment: Sure, it is likely to be "invoked" but where is there
a case where it has been granted?]
Appellate courts are not required to come to the “aid and assistance” of a party
who is in “flagrant contempt” of legal orders and processes of the courts.
[Stone v. Bach (1978) 80 CA3d 442, 444, 145 CR 599, 599–600—appeal
dismissed where appellant in contempt of orders arising from partnership
dissolution;
see also MacPherson v. MacPherson (1939) 13 C2d 271, 277, 89 P2d 382, 385—
appeal from attorney fee order in child custody case dismissed where appellant in
contempt of court's custody order;
Guardianship of Melissa W. (2002) 96 CA4th 1293, 1299, 118 CR2d 42, 46—
appeal dismissed where appellant grandparents violated order requiring minor's
return to father by accompanying minor to Bahamas and participating in marriage
designed to alter minor's legal status; [Maura Larkins comment: there is no
dispute about the question of whether or not order was actually violated.
In Stutz v. Larkins, the judge has already been found by the court of
appeal to have issued and unconstitutional injunction.]
compare In re Claudia S. (2005) 131 CA4th 236, 244–245, 31 CR3d 697, 701–
702—disentitlement doctrine inapplicable to bar parents' appeals in dependency
case where they did not receive notice from court of juvenile court proceedings
and had fled country with children before dependency petitions were filed]
[ML comment: Judge refused to clarify her meaning, thus lack of notice.]
The disentitlement doctrine is not, however, “limited to cases in which the appellant
is in violation of the order from which he or she appeals, but rather may also apply
to cases in which the appellant has violated orders other than the one from which
the appeal has been taken.” [In re E.M. (2012) 204 CA4th 467, 477, 138 CR3d
846, 853–854—disentitlement doctrine applied in child dependency proceeding
where mother, by absconding with children to Mexico, “frustrate[d] the juvenile
court from carrying out its orders”]
(a) [2:341] Formal contempt adjudication not required: The appellate court's power
to stay or dismiss an appeal as a penalty is based on “fundamental equity and is
not to be frustrated by technicalities, such as the absence of a formal citation and
judgment of contempt.” Thus, a party's wilful/obstructive misconduct at the trial
level may itself bar his or her right to appeal. [Alioto Fish Co., Ltd. v. Alioto, supra,
27 CA4th at 1683, 34 CR2d at 250–251 (internal quotes omitted); TMS, Inc. v.
Aihara, supra, 71 CA4th at 379, 83 CR2d at 835 (citing text); see also Tobin v.
Casaus (1954) 128 CA2d 588, 592–593, 275 P2d 792, 794–795—appeal
conditionally dismissed (stayed) where appellant had been sought for
postjudgment supplemental examination and knew bench warrant had issued for
his arrest but failed to appear]
CACIVAPP CH. 2-D
California Practice Guide: Civil Appeals and Writs
Jon B. Eisenberg, Ellis J. Horvitz, and Justice Howard B. Wiener (Ret.)
Chapter 2. Appealability And Standing To Appeal
d. [2:339] Waiver as penalty: A party who has
purposefully defied court orders in the case, or a
corporate party whose powers are suspended for
nonpayment of franchise taxes, may be penalized by
denial of the right to take an appeal:
(1) [2:340] Wilful disobedience of court orders (“disentitlement doctrine”):
Appellate courts have inherent power to dismiss or stay an appeal taken by a
party who is in contempt of a trial court order issued in the action or who,
although not adjudged in contempt, has wilfully disobeyed court orders in the
action. [TMS, Inc. v. Aihara (1999) 71 CA4th 377, 379, 83 CR2d 834, 834–835
(citing text) (judgment debtors' wilful failure to comply with court order to answer
postjudgment interrogatories); Say & Say v. Castellano (1994) 22 CA4th 88, 94,
27 CR2d 270, 273 (3 contempt adjudications); Alioto Fish Co., Ltd. v. Alioto (1994)
27 CA4th 1669, 1682–1683, 34 CR2d 244, 250 (no formal contempt but persistent
defiance of court orders)]
This penalty (so-called “disentitlement doctrine”) is particularly likely to
be invoked where the appeal arises out of the very order (or orders) the
party has disobeyed.
[Maura Larkins comment: Sure, it is likely to be "invoked" but where is there
a case where it has been granted?]
Appellate courts are not required to come to the “aid and assistance” of a party
who is in “flagrant contempt” of legal orders and processes of the courts.
[Stone v. Bach (1978) 80 CA3d 442, 444, 145 CR 599, 599–600—appeal
dismissed where appellant in contempt of orders arising from partnership
dissolution;
see also MacPherson v. MacPherson (1939) 13 C2d 271, 277, 89 P2d 382, 385—
appeal from attorney fee order in child custody case dismissed where appellant in
contempt of court's custody order;
Guardianship of Melissa W. (2002) 96 CA4th 1293, 1299, 118 CR2d 42, 46—
appeal dismissed where appellant grandparents violated order requiring minor's
return to father by accompanying minor to Bahamas and participating in marriage
designed to alter minor's legal status; [Maura Larkins comment: there is no
dispute about the question of whether or not order was actually violated.
In Stutz v. Larkins, the judge has already been found by the court of
appeal to have issued and unconstitutional injunction.]
compare In re Claudia S. (2005) 131 CA4th 236, 244–245, 31 CR3d 697, 701–
702—disentitlement doctrine inapplicable to bar parents' appeals in dependency
case where they did not receive notice from court of juvenile court proceedings
and had fled country with children before dependency petitions were filed]
[ML comment: Judge refused to clarify her meaning, thus lack of notice.]
The disentitlement doctrine is not, however, “limited to cases in which the appellant
is in violation of the order from which he or she appeals, but rather may also apply
to cases in which the appellant has violated orders other than the one from which
the appeal has been taken.” [In re E.M. (2012) 204 CA4th 467, 477, 138 CR3d
846, 853–854—disentitlement doctrine applied in child dependency proceeding
where mother, by absconding with children to Mexico, “frustrate[d] the juvenile
court from carrying out its orders”]
(a) [2:341] Formal contempt adjudication not required: The appellate court's power
to stay or dismiss an appeal as a penalty is based on “fundamental equity and is
not to be frustrated by technicalities, such as the absence of a formal citation and
judgment of contempt.” Thus, a party's wilful/obstructive misconduct at the trial
level may itself bar his or her right to appeal. [Alioto Fish Co., Ltd. v. Alioto, supra,
27 CA4th at 1683, 34 CR2d at 250–251 (internal quotes omitted); TMS, Inc. v.
Aihara, supra, 71 CA4th at 379, 83 CR2d at 835 (citing text); see also Tobin v.
Casaus (1954) 128 CA2d 588, 592–593, 275 P2d 792, 794–795—appeal
conditionally dismissed (stayed) where appellant had been sought for
postjudgment supplemental examination and knew bench warrant had issued for
his arrest but failed to appear]
CACIVAPP CH. 2-D
Lytwyn Appellant's Opening Brief re
res judicata
res judicata
California Code of Civil
Procedure Section 906
906. Upon an appeal
pursuant to Section 904.1
or 904.2, the
reviewing court may
review the verdict or
decision and any
intermediate ruling,
proceeding, order or
decision which involves
the merits or necessarily
affects the judgment or
order appealed from or
which substantially
affects the rights of a
party, including, on any appeal
from the judgment, any order on
motion for a new trial, and may
affirm, reverse or modify any
judgment or order appealed from
and
may direct the proper judgment or
order to be entered, and may, if
necessary or proper,
direct a new trial or
further proceedings to be
had.
The respondent, or party in whose
favor the judgment was given,
may, without appealing from
such judgment, request the
reviewing
court to and it may review any
of the foregoing matters for the
purpose of determining
whether or not the appellant
was prejudiced by
the error or errors upon which
he relies for reversal or
modification of the judgment
from which the appeal is taken. The
provisions of this section do not
authorize the reviewing court to
review any decision or order from
which an appeal might have been
taken.
Procedure Section 906
906. Upon an appeal
pursuant to Section 904.1
or 904.2, the
reviewing court may
review the verdict or
decision and any
intermediate ruling,
proceeding, order or
decision which involves
the merits or necessarily
affects the judgment or
order appealed from or
which substantially
affects the rights of a
party, including, on any appeal
from the judgment, any order on
motion for a new trial, and may
affirm, reverse or modify any
judgment or order appealed from
and
may direct the proper judgment or
order to be entered, and may, if
necessary or proper,
direct a new trial or
further proceedings to be
had.
The respondent, or party in whose
favor the judgment was given,
may, without appealing from
such judgment, request the
reviewing
court to and it may review any
of the foregoing matters for the
purpose of determining
whether or not the appellant
was prejudiced by
the error or errors upon which
he relies for reversal or
modification of the judgment
from which the appeal is taken. The
provisions of this section do not
authorize the reviewing court to
review any decision or order from
which an appeal might have been
taken.
Staying execution
pending appeal--
Bond is needed
pending appeal--
Bond is needed
Gilbert v. Sykes
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
Del Junco v. Hufnagel
Public figures in Schools
Public figure Anti-SLAPP
Free Speech
Whistle-blowers
Cases and Links
Appeals California
Appellate Law
Manatt.com
Mar 06, 2012
Time to Disqualify Judge on Remand Not Triggered by
Remittitur
Author: Seth Reagan
California Code of Civil Procedure section 170.6 allows prevailing appellants to
disqualify the original trial court judge from presiding over a case after remand
from the Court of Appeal by moving to disqualify that judge within “60 days.” But
when does the 60-day clock start ticking? The Second District Court of Appeal
recently answered this question in Ghaffarpour v. Superior Court of Los Angeles
County (No. B234097), concluding that the 60 days begins to run from when
the party first learns of the judicial assignment — not from when the
Court of Appeal issues the remittitur.
Ghaffarpour had sued a hotel and its hired security agency for assault and other
intentional torts in Los Angeles County Superior Court. After the trial court
dismissed the case on statute of limitations grounds, Ghaffarpour
prevailed on appeal, winning a reversal of the judgment and a remand
to proceed with the case. The Court of Appeal issued its remittitur on August
26, 2010.
Nine months later, the trial court had still not scheduled further
proceedings. When Ghaffarpour’s counsel contacted the court clerk on June
3, 2011 to ask about the status of the case, the clerk responded that the
matter would soon be reassigned to the original judge. This was
Ghaffarpour’s first notification that the same judge would be presiding.
Seven days later, on June 10, 2011, Ghaffarpour moved to disqualify the judge
for prejudice under Code of Civil Procedure section 170.6, which allows an
appellant to file such a peremptory challenge within 60 days from the
date of notification that the prior judge has been reassigned. The local
rules for the Los Angeles County Superior Court, however, stated that the 60-
day period began to run “from the date of issuance of the remittitur” by the court
of appeal. Following that local rule, the trial court denied Ghaffarpour’s
peremptory challenge as untimely. Ghaffarpour once again turned to the Court
of Appeal for relief.
The Court of Appeal recognized that the state and local rules directly conflicted
and could not be harmonized. Even though remanded matters are typically
reassigned to the same judge, there is no guarantee that will happen.
Thus, a remittitur does not serve as “constructive notice” that the
previous judge will be reassigned. Holding otherwise “would permit a local
rule to limit the time period in which a … peremptory challenge can be asserted,”
thereby thwarting the intention of the State Legislature and hindering the
promotion of justice. Thus, the local rule was void.
Ghaffarpour makes clear that successful appellants in Los Angeles and
throughout California have 60 days to disqualify a judge on remand, which
begins to run only on notification that the matter has in fact been reassigned to
the previous judge — not simply upon issuance of the remittitur.
- See more at: http://www.manatt.com/Appellate_Law/_AppellateLaw_3_6_12.
aspx#sthash.imJKV3N8.dpuf
Manatt.com
Mar 06, 2012
Time to Disqualify Judge on Remand Not Triggered by
Remittitur
Author: Seth Reagan
California Code of Civil Procedure section 170.6 allows prevailing appellants to
disqualify the original trial court judge from presiding over a case after remand
from the Court of Appeal by moving to disqualify that judge within “60 days.” But
when does the 60-day clock start ticking? The Second District Court of Appeal
recently answered this question in Ghaffarpour v. Superior Court of Los Angeles
County (No. B234097), concluding that the 60 days begins to run from when
the party first learns of the judicial assignment — not from when the
Court of Appeal issues the remittitur.
Ghaffarpour had sued a hotel and its hired security agency for assault and other
intentional torts in Los Angeles County Superior Court. After the trial court
dismissed the case on statute of limitations grounds, Ghaffarpour
prevailed on appeal, winning a reversal of the judgment and a remand
to proceed with the case. The Court of Appeal issued its remittitur on August
26, 2010.
Nine months later, the trial court had still not scheduled further
proceedings. When Ghaffarpour’s counsel contacted the court clerk on June
3, 2011 to ask about the status of the case, the clerk responded that the
matter would soon be reassigned to the original judge. This was
Ghaffarpour’s first notification that the same judge would be presiding.
Seven days later, on June 10, 2011, Ghaffarpour moved to disqualify the judge
for prejudice under Code of Civil Procedure section 170.6, which allows an
appellant to file such a peremptory challenge within 60 days from the
date of notification that the prior judge has been reassigned. The local
rules for the Los Angeles County Superior Court, however, stated that the 60-
day period began to run “from the date of issuance of the remittitur” by the court
of appeal. Following that local rule, the trial court denied Ghaffarpour’s
peremptory challenge as untimely. Ghaffarpour once again turned to the Court
of Appeal for relief.
The Court of Appeal recognized that the state and local rules directly conflicted
and could not be harmonized. Even though remanded matters are typically
reassigned to the same judge, there is no guarantee that will happen.
Thus, a remittitur does not serve as “constructive notice” that the
previous judge will be reassigned. Holding otherwise “would permit a local
rule to limit the time period in which a … peremptory challenge can be asserted,”
thereby thwarting the intention of the State Legislature and hindering the
promotion of justice. Thus, the local rule was void.
Ghaffarpour makes clear that successful appellants in Los Angeles and
throughout California have 60 days to disqualify a judge on remand, which
begins to run only on notification that the matter has in fact been reassigned to
the previous judge — not simply upon issuance of the remittitur.
- See more at: http://www.manatt.com/Appellate_Law/_AppellateLaw_3_6_12.
aspx#sthash.imJKV3N8.dpuf
Remittitur
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