California Appellate Lawyer Blog

In Kleveland v. Siegel & Wolensky, LLP (filed 4/17/13) 2013 DJDAR 4961, the appellate court answered this question with a stinging rebuke: where there was no arguable merit to the initial probate petition and appeal, the court awarded attorney fees and sanctions totaling more than $60,000 against the appellant's attorneys in the later appeal of a malicious prosecution action against the attorneys ("Siegel").

This case had a long and torturous history including this third appeal by appellant concerning the proceedings in the lower court. It all started with appellant Siegel's client's superior court challenge of respondent Kleveland's handling of a trust as trustee. In the first appeal, the Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court's determination that Siegel's client pursued the probate petition in bad faith and for improper purpose, let alone that the challenge was meritless. The second appeal challenged the trial court sanctions imposed against Siegel; again affirmed. Kleveland then filed this malicious prosecution action against Siegel, which resulted in the favorable award for Kleveland including attorney fees. This appeal by Siegel challenged that award, arguing that probable cause existed to bring the probate petition, there was no malice, and the award of attorney fees was an abuse of discretion.

In its published opinion, the appellate court minces no words in affirming. It rejected all of the contentions and stated it was "troubled" by appellant's "utter failure" to provide a summary of significant facts taken for the record. The court was further "perturbed" by the use of asserted facts not contained in the record. Then, the court, on its own motion, found appellant's tactics "patently frivolous" and awarded, in addition to attorney fees, sanctions payable to the appellate court for the court's costs of the proceedings.

The Court of Appeal goes into the details of the lower court proceedings that led to this action and appellant's failures along the way. No need to elaborate here. I must say though that this opinion amounts to the strongest tongue-lashing against counsel that I can recall reading in a published case. In particular, the appellate court found that there was substantial evidence that the initial use of an appeal for the sole purpose of trying to force settlement was malicious. Here, the attorneys' initial malice was exacerbated by failure to follow the basic appellate requirement of stating facts from the record of the proceeding. The result: not only are attorney fees recovered by respondent both below and on appeal, but the attorneys are required to pay sanctions to the court in the sum of $8,500. Not good for either the law firm's finances or its reputation.

In short, a frivolous appeal risks a whole lot more than simply losing the appeal.

The short answer is: do not try to ignore the problem, or even worse, mislead the court. This is exactly what appellant Good did in Good v. Miller (published opinion filed 3/13/13) C068802.

Good sued Miller in an insurance policy dispute. The Placer County trial court found that Good acted in willful noncompliance with the court's order compelling discovery, and awarded Miller both monetary and terminating sanctions. On the 60th day after that order, Good filed his notice of appeal from that order. One problem: a terminating sanction order is not an appealable order. (Code of Civil Procedure section 904.1.) 15 days after Good filed his notice of appeal, a judgment in favor of Miller was filed. Good failed to appeal the judgment (which is appealable under 904.1); nor did he make any other effort to correct his mistake.

The Court of Appeal, Third Appellate District, dismissed the appeal. In its opinion, the court noted that there are circumstances in which the court may save premature appeals: (1) the notice of appeal is entered after judgment is rendered but before it is entered, and (2) the notice of appeal is filed after announcement of intended ruling but before the judgment is either rendered or filed. California Rules of Court, rule 8.104(d) recites the above as subparts (1) and (2) respectively. (1) is mandatory; (2) is discretionary. Because the order granting terminating sanctions is not an appealable order (an appealable order is included in the meaning of "judgment"), the appellate court here acted discretionarily under subpart (2).

The court declined to exercise its discretion for three reasons: (1) appellant did not ask the court to do so; (2) respondent repeatedly raised the issue and appellant repeatedly ignored it; and (3) appellant misstated in his brief that his appeal was timely filed. The court essentially said: ignore the problem and we will ignore your purported appeal--case dismissed.

Continue reading "What are the limits to an appellate court excusing failure to appeal from an appealable order? " »

California Government Code section 815.6 exempts a public entity from immunity if it has failed to discharge a statutory "mandatory duty" designed to protect from injury. Los Angeles County Code (LACC section 10.12.090C states that the county animal care and control department "shall capture and take into custody . . . [a]ny animal being kept or maintained contrary to [LACC sect. 10.40.010W]." That section states, "No animal shall be allowed to constitute a hazard or be a menace to the health, peace or safety of the community."

In County of Los Angeles v. Superior Court (Faten) (filed September 5, 2012, certified for publication on Sept. 20) 2012 DJDAR 13264, minor Kameron Faten and his two bothers were walking home from school when two pit bulls jumped over the fence of John Boles' residence and viciously attacked Kameron. The boys' parents sued on their behalf for personal injury and emotional distress, naming Bowles, his landlord and the County of Los Angeles.

The County moved for summary judgment in the Superior Court, claiming the above-cited portions of the county ordinance were merely discretionary or permissive, thus it was immune and owed no duty.

The evidence reflected that on one occasion, a pit bull running loose in the neighborhood was seized and eventually euthanized, but not identified with any residence or owner. The County had received 9 previous telephone calls about the many pit bulls that had been at the Bowles' residence during the past two-and-a-half years before the attack on Cameron. Pit bulls at the residence were reported to have jumped the fence, to have run loose and chase people. However, County animal control officer were unable to find any dogs of the Boles to be running loose. Officers had gone to the residence and posted notices, finding no responsible person home except on one occasion. The one time contact was made with a member of the Boles family occurred three months before the Faten incident when an identified neighbor reported that two pit bulls had jumped the Boles' fence and killed two of her goats in her yard. Officers gave written notice at that time that the Boles could keep no more than 3 dogs.

Continue reading ""Shall" is not always mandatory language; LA County not required to capture pit bulls because whether "hazard" is discretionary decision under immunity statute " »

In Touchstone Television Productions v. Superior Court (B241137, filed August 16, 2012), petitioner Touchstone had an agreement with actress Nicollette Sheridan for the first season of the television series Desperate Housewives in which Touchstone had the exclusive option to renew Sheridan's services on an annual basis for an additional six seasons. During Season 5, Touchstone informed Sheridan it would not renew her contract for Season 6, while paying her for the entirety of Season 5. Sheridan sued for wrongful termination in violation of public policy, alleging that she was "fired" because she had complained about a battery committed against her by the series' creator Mark Cherry. A jury deadlocked on this claim resulting in a mistrial. Touchstone's motion for a directed verdict was denied by the trial court, and Touchstone petitioned the Court of Appeal for extraordinary relief.

The Court of Appeal, Second Appellate District, Division Four, stayed the pending retrial, issue an alternative writ of mandate, and, after receiving briefing and oral argument, concluded the trial court erred in denying Touchstone's motion for directed verdict. The court was convinced there was clear legal precedent on the merits: "A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment, but, instead, an expiration of a fixed term contract. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39.)"

The appellate court, however, rather than ordering the entire action dismissed, sent the matter to the trial court to allow Sheridan to file an amended complaint alleging a cause of action under California Labor Code section 6310 that Touchstone retaliated against her for complaining about unsafe working conditions (in the form of Cherry's conduct) by deciding not to exercise its option to renew her contract. The court noted that, after this petition was filed, Sheridan had moved the trial court to allow her to amend her complaint to add the Section 6310 claim; the trial court had denied that motion.

Continue reading "Writ granted: producers of Desperate Housewives granted directed verdict on actress's wrongful termination claim." »

In Nelsen v. Legacy Partners Residential, Inc. (filed July 18, 2012) 2012 DJDAR 9956, plaintiff Lorena Nelson worked for defendant as a property manager from 2006 to 2009. Early in her employment she received a 43-page pre-printed form employee handbook that included a small-print arbitration clause at page 42 headed "TEAM MEMBER ACKNOWLEDGMENT AND AGREEMENT." The handbook gave no option to arbitration as a means of resolving employment disputes. She signed the agreement. In 2010, she filed a class-action lawsuit against defendant primarily alleging violations of wage and hour laws.

Defendant moved the trial court to compel plaintiff to arbitrate the matter as an individual party pursuant to the arbitration clause. Plaintiff opposed the motion, claiming the arbitration clause was unconscionable and in violation of California public policy favoring class actions in this type of lawsuit; if arbitration was to be compelled, argued plaintiff, the court would have to allow class arbitration. The trial court granted the motion to compel individual arbitration, and plaintiff appealed.

To start, the California Court of Appeal, First Appellate District, Division One, questioned whether plaintiff is allowed to appeal this order because it is not a final judgment. (Civil Code section 906.) Nelson argued the "death knell" doctrine, citing Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277: that the order is effectively the death of the class litigation. However, the appellate court pointed to the applicability of this doctrine only where it is unlikely that any individual action will proceed. But the court stops short of deciding this issue of appealability, and instead exercised its discretion to treat the appeal as a petition for writ of mandate.

On the merits, the Court of Appeal determined that plaintiff failed to meet her burden of showing (1) the arbitration clause was both procedurally and substantively unconscionable, and/or (2) that the clause required class-wide arbitration.

Continue reading "Purported appeal of order compelling arbitration treated as extraordinary petition; order compelling individual arbitration affirmed" »

John Leonard was first diagnosed with mesothelioma after his marriage to Sandra Leonard in 2001. This progressive and fatal disease allegedly resulted from John's exposure to asbestos between 1958 and 1995 caused by John Crane, Inc. In Leonard v. John Crane, Inc. (filed June 13, 2012) 2012 DJDAR 7862, Sandra's lawsuit for loss of consortium was dismissed by the San Francisco Superior Court when it sustained Crane's demurrer without leave to amend. The trial court relied upon Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, which held that a loss of consortium claim is cognizable only if the plaintiff was married to the injured spouse at the time of defendant's wrongful conduct. The Court of Appeal, First Appellate District, Division Five, reversed on appeal, after having denied an earlier petition for writ review.

On appeal, defendant argued that the Zwicker holding was "binding" on the trial court. Plaintiff disagreed, arguing not only that Zwicker was bad law, but also that the case was distinguishable and the purported holding was dicta. Both parties agreed that the focus should be the date of the "injury" to the spouse. Defendant insisted the injury occurred at the time John was exposed to asbestos; plaintiff urged that her claim arose only once John had appreciable and actionable injury.

The appellate court declined to apply Zwicker. First, it agreed with plaintiff that a valid loss of consortium arises when a latent and unappreciated injury initially becomes manifest, which in this case was during marriage. Zwicker involved a medical malpractice claim that became manifest prior to the marriage; the ruling was correct on that point, but is factually distinguishable. Second, the Zwicker court went beyond the facts of its case to state a broader principle: that a loss of consortium necessarily arises at the time the wrongful conduct occurred; the Leonard court found this broadly stated principle to be incorrect.

In reaching its decision, the court discussed the split of authority on this question in other jurisdictions. Now California too has a split of appellate authorities. The court noted that another appellate district, the Second District Court of Appeal recently reached the same conclusion as it had. (See Vanhooser v. Superior Court (Hennessy Industries) (June 1, 2012) ___ Cal.App.4th ___.) Thus the Third District Court of Appeal holding in Zwicker is now at odds with these holdings in two other districts.

Continue reading "Loss of consortium may lie for pre-marriage acts causing latent injury: a lesson that appellate authority may not carry the day" »

In Duncan v. The McCaffrey Group, Inc. (filed October 28, 2011) 2011 DJDAR 15875, plaintiffs bought from defendants residential lots in a tract marketed as Treviso Custom Home Development. Plaintiffs claim they bought in the development, paying premium prices, because of its marketing as an exclusively custom home development; instead, defendants, unbeknownst to plaintiffs, intended to build smaller tract homes on some of the lots .The matter came before the Fresno County Superior Court on defendants' demurrers and motion for summary adjudication. On the issues that are the subject of this appeal, the trial court sustained the demurrers and granted summary adjudication on the basis that the parol evidence rule precluded plaintiffs from establishing facts supportive of their claims. The Court of Appeal, Fifth Appellate District, reversed.

Defendants took the position that plaintiffs' allegations in question could not be considered because they contradicted the terms of the lot sales agreements and the CC&R's that included giving the developer the right to build different types of residences. Under the parole evidence rule, argued defendants, the integrated agreement on each lot was the final expression of the terms of the agreement.

On their causes of actions for unfair competition and false advertising, the plaintiffs successfully argued to the appellate court that these claims did not contain allegations that required proof that would vary, alter or add to the terms of a written agreement. Rather than argue the terms of the agreement, each plaintiff alleged he or she was mislead by and reasonably relied upon false advertising.

Continue reading "Evidence extrinsic to the parties' contract is admissible to prove false advertising" »

"It's the bad economy" has become the all-too-frequent, yet mostly accurate, cry heard when a party is called upon to explain the decrease, or even total loss, in value of a disputed asset. In litigation over community assets in a marital dissolution, this explanation may not suffice, as is emphasized in the recent California Court of Appeal, Fourth Appellate District (Division 3) case of Marriage of Margulis (modification filed Sept. 9, 2011) 2011 DJDAR 13821.

The evidence at trial showed that Elaine Margulis, as the non-managing spouse, had no personal knowledge of the extent of the community property at the time of her separation from Alan Margulis. Evidently, Alan as the spouse who managed the community assets, had at one time prepared a list of assets and their approximate values (investment funds purportedly totaling $787,000). Elaine offered this document into evidence to show that substantial community assets under Allen's control had disappeared between separation and trial. While the trial court admitted this document into evidence, it gave this evidence little or no weight. The court thus found that Elaine had failed to carry her burden of proving the values of these investment account assets.

The Court of Appeal disagreed. It found that the evidence introduced by Elaine satisfied her initial burden of showing that Alan controlled community assets of a certain value. The statutory fiduciary duties of disclosure and accounting effectively shifted the burden to Alan to rebut the presumption charging him with the assets listed in this evidence which constituted prima facie evidence of the values stated. (See California Family Code section 721, subdivision (b).) This statute requires the managing spouse to furnish information to the other spouse concerning the disposition of community assets. The trial court here failed to require Alan to trace the missing money to proper expenditures to determine whether he had taken unfair advantaged of her.

While the trial court did find that Alan neglected to maintain proper records, it failed to consider whether Alan had breached additional fiduciary duties that would have allowed Elaine to recover damages under Family Code section 1101, subdivisions (g) and (h) for assets undisclosed or transferred in breach of fiduciary duty.

So it is not enough for a managing spouse to simply say I lost all of that money on bad investments or the investments were victims of the bad economy. The spouse must keep good records of changes in values and details of disposition or else be charged with their prima facie value.

A California Court of Appeal just came down with an interesting case regarding mootness.

In Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, ___ Cal.App.4th ___ (4th Dist. No. E047624, 8/25/11), plaintiff sued the city, Target, and the developer to enjoin its approval of a new shopping center. Plaintiff claimed that the project violated state requirements on affordable housing and on environmental requirements.

The trial court ruled for the City, and plaintiff appealed. During the appeal, however, the project was abandoned - because of litigation between Target and the developer. The City then moved to dismiss the appeal, claiming mootness.

On its face, dismissing for mootness makes sense. No more project to stop, so why bother with plaintiff's appeal, right?

Not so fast, held the Court of Appeal. A dismissal of the appeal constitutes an affirmance of the trial court's ruling. We don't want to do that, because we've never looked at the merits of the appeal. And maybe - just maybe, as the law is not settled on this - "the less-than-fully-litigated judgment might have a preclusive effect on subsequent litigation."

The solution? Reverse because of mootness, with directions to the trial court to dismiss the complaint. That should make everyone happy - or minimally unhappy - given the circumstances.

Pretty clever. Nice to see our appellate courts taking such care on procedural matters.

By: Myron Moskovitz

I have learned that when I buy a cell phone at a discount, conditioned on my entering a service agreement for a defined time, I end up paying the sales tax on the undiscounted price stated for the phone. Plaintiff had this same experience, but was surprised to learn that she could have negotiated for a lesser or no sales tax because under California Code of Regulations, title 18, section 1585, subdivision (b) (3), while the retailer is required to report and pay the full sales tax, it may (rather than must) collect that charge from the consumer.

In Bower v. AT&T Mobility LLC (filed June 29, 2011) 2011 DJDAR 9801, the California Court of Appeal, Second Appellate District, Division One, affirmed the trial court's sustaining of demurrer without leave to amend in part because plaintiff Bowers failed to show legally cognizable injury. Bowers had claimed reliance upon misleading statements by AT&T that she had no choice but to pay the sales tax on the undiscounted price. While it is true that the retailer must remit the full tax to the state, because the retailer does have a choice to pass the cost on to the consumer, she asserted that she had been denied the opportunity to negotiate the amount of sales tax she had to pay. In her second amended complaint, Bower tried to allege actual loss in citing this lost opportunity; the trial court had found this allegation too "speculative."

The appellate court agreed that the allegations were insufficient to plead the required element of injury in fact as one must do in an action brought under Business & Professions Code sections 17200 or 17500 (unfair business practice or misleading advertising). There was no economic injury because plaintiff could not allege she would not have bought this product but for the misrepresentation and that the product was worth less than represented.

Often in mediations, I state my sympathy to a party claiming to have been wronged, but find it necessary to ask, "But what are your damages?" Many wrongs are very real but are left without a remedy. Some cases like the above are so for lack of standing as a matter of pleading. Others are so because a plaintiff cannot present factual proof of loss. Attorneys are wise to assess damages before even taking a case, no matter how "wrong" the conduct of the prospective defendant.

An appellate court can assist counsel on a discretionary basis by construing appeals from non-appealable orders. It may treat the matter as a writ petition. (Munger v. Gates (1987) 193 Cal.App.3d 1248, 1254.) It may view them as appeals from existing orders. (Vibert v. E. I. DuPont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1538) It may supply a missing judgment. (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440-1441.)

But beware. An appellate court's "saving power" is entirely discretionary and case law is replete with California appellate cases expressing weariness with errant counsel. Those cases include one I authored while serving on California's Court of Appeal, Fifth Appellate District, Jordan v. Malone (1992) 5 Cal.App.4th 18. In Jordan, plaintiff candidly admitted no formal judgment was entered, but the appellate court should nonetheless construe the trial court's tentative decision as a final judgment. Not a good tactic to admit laziness. And the California Supreme Court has weighed in that the "saving" of an appeal renders jurisdiction "questionable," which should make reliance on an appellate court's generosity to save your appeal one of last resort. (Connolly v. County of Orange (1992), 1 Cal.4th 1105, 1112.)

Assessing an appeal requires deciding whether a case has sufficient merit to warrant the cost of appeal, what issues in particular have reasonable chance of success, and how best to argue your case. For those of us who have been on the other side of the bench, one piece of advice is absolutely essential: if you are the attorney who tried the case and your client approves and can afford it, get some form of assistance early on from experienced appellate counsel. Even very experienced trial counsel can be too close to the trees to see the forest. A review of your pre-trial, post-trial or pre-appeal matter for specific appellate issues or problems may save you from costly (and avoidable) errors.

In my June 2 blog article I discussed some general rules concerning whether a judgment is appealable. Today, the focus is on these two specific types of orders that have some tricky applications.

The majority view is that discovery sanctions, regardless of amount, are not directly appealable, but are reviewable only on appeal after final judgment or on writ petition. (Ballard v. Taylor (1993) 20 Cal.App.4th 1736, 1739.) There is however a minority of cases that construe Code of Civil Procedure section 904.1 (a) (11) and (12), the general sanctions statute, to apply to all sanctions including matters of discovery and thus allow direct appeal for those sanction orders exceeding $5,000. ( See, for example, Green v. Amante (1992) 3 Cal.4th 684, 690.)

In addition to some conflict in the law, an exception to the rule that a discovery sanction is not immediately appealable also exists. If a party's former attorney or an attorney of a party no longer participating in the litigation incurred the sanction order the order is deemed final as to the attorney who is no longer participating, an analysis akin to the "final as to a party" exception. (Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1561.) Thus, counsel who believe they or their client have been improperly sanctioned and plan to appeal a sanction order must be especially diligent in reviewing appeal deadlines as the litigation progresses.

Continue reading "More on the question of whether an order is appealable: discovery sanctions and defaults" »

Protecting the environment has become a noteworthy objective for conscientious consumers. Not surprisingly, commercial producers have tapped into this market in labeling products. What does such labeling actually tell a consumer about the product? One such consumer, Ayana Hill, thought the green drop on the label of Fiji bottled water meant the product was "environmentally superior" and "endorsed by an environmental organization." She bought the product twice a week starting in 2008 paying about 15% more than for other bottled water; she would not have bought Fiji water had she known the green drop was the company's own creation and not an endorsement of the product by a neutral organization that the product was environmentally superior. She further alleged the product in fact caused no less environmental damage than its competitors did.

In Hill v. Roll International Corp. (filed May 26, 2011) 2011 DJDAR 7641, the Court of Appeal, First Appellate District, Division Two, affirmed the judgment of dismissal on sustaining of demurrer to plaintiff Hill's complaint that included allegations of violations of California's Unfair Competition Law (UCL) and False Advertising Law (FAL) (Business & Professions Code section 17200 et seq. and 17500, et seq., respectively), Consumers Legal Remedies Act (CLRA) (Civil Code section 1750 et seq.) and common law fraud. The appellate court found that no reasonable consumer would be misled to think that the green drop represented the endorsement of a separate organization or that the product was environmentally superior.

Significant to the court's analysis was the Federal Trade Commission guides that have been incorporated by the California Legislature into the statutory definition of environmental marketing claims. (See Business & Professions Code section 17580.5, subdivision (a).) Those guides require substantiation that an express or implied claim conveys to a reasonable consumer an objective quality, feature, or attribute of the product. Hill's subjective beliefs alone do not satisfy this requirement. Moreover, the context of the green-drop symbol indicates that it bears no name or recognized group logo, no trademark, and no indication other than it is a symbol of Fiji water.

As the trial court proceedings here terminated at the pleading stage, the court was satisfied that even assuming everything Hill alleged was true, she still could not prevail. So UCL and FAL plaintiff attorneys need to pay close attention that their pleadings adequately allege that asserted misrepresentations are such that the typical, reasonable consumer would be mislead, not just that the named plaintiff was mislead. And of course, be prepared to prove that. The standard is that of an "ordinary consumer within the larger population." (Lavie v.Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 510.)

CarMax instituted a pay plan for its sales consultants designed to avoid an incentive for salespersons to push customers to higher-priced vehicles. Rather than include in the salesperson's compensation package a percentage of the person's total dollars of sales, it would pay the employee a fixed payment for each vehicle sold. California Labor Code section 1194 requires employers to pay overtime; there is however an exemption if such a salesperson earns more than one-and-one-half times the minimum wage and "commissions" constitute more than one-half of the person's compensation.

In Areso v. CarMax, Inc (filed May 23, 2011) 2011 DJDAR 7271, plaintiff filed a class action primarily alleging that defendant failed to pay overtime to sales consultants. Her total pay and total per-car compensation (at the rate of $154 per car sold) exceeded the threshold requirements of the commissioned sales exemptions if her per-car compensation constituted a "commission." She argued this was not a commission. Defendant claimed it was, and moved for summary adjudication of this particular cause of action accordingly. The trial court granted the motion and the Court of Appeal, Second Appellate District, Division One, affirmed.

Because the summary adjudication disposed of only the first of six causes of action, the Court of Appeal first addressed the issue of appealability. (See my discussion in June 2 blog.) The second cause of action had previously been dismissed with prejudice, however the remaining ones were dismissed at plaintiff's request without prejudice. The court noted that a voluntary dismissal without prejudice generally is not a final judgment appealable on the merits, however, if the remaining causes of action are purely ancillary, the matter is appealable. Here one of the remaining causes of actions was not ancillary, but because the court found plaintiff's appellate brief had effectively waived her right to proceed on that action, the court cured the issue of a remaining cause of action by exercising its discretion to amend the judgment to reflect that the remaining cause of action was dismissed with prejudice.

Continue reading "Uniform Payment for Each Car Sold Constitutes "Commission" in Determining Car- Dealer Employee is Exempt from Overtime Pay " »

California Code of Civil Procedure section 904.1 provides the basic rules of what constitutes an appealable order. In this blog article, I wish to discuss some of the subtleties in making that determination.

Often attorneys attempt to appeal a case that gets dismissed as taken from a nonappealable judgment because of violation of the "One Final Judgment Rule." As the appellate court stated in Kinoshita v. Horio (1986) 186 Cal.App. 3d 959, at 966-967: "[P]iecemeal disposition and multiple appeals tend to be oppressive and costly." The objective here in strictly enforcing this rule is to avoid a multiplicity of appeals, reduce uncertainty and trial court delays, not allow an early appeal to be obviated by a later trial court ruling, and enable a complete adjudication that would allow specific instructions for further proceedings if necessary on remand.

A problem in application, however, is that the line is not always clear as to whether there is an issue left for further consideration by the trial court. On the one hand it might be said that if all that is left is compliance with the decree in question, the decree is final. On the other hand, if any judicial action by the trial court is necessary to an ultimate determination of the rights of the parties, the decree is not final. In short, what is determinative is substance rather than labels.

Continue reading "How Does One Determine Whether a Court Order or Judgment Is Appealable?" »