• Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





Is an order denying a motion to reconsider appealable?

In Powell v. County of Orange, 2011 Cal.App. LEXIS 1024, the plaintiff appealed from an order denying his motion for reconsideration, which sought reconsideration of his earlier motion to set aside an order dismissing his action in the trial court for lack of prosecution.  The appellate court dismissed the appeal for lack of appellate jurisdiction.

The opinion was published for two reasons:  (1) to let attorneys know that the Court was joining with other appellate courts in holding an order denying a motion for reconsideration is not appealable, and (2) an order of dismissal, including a minute order not signed by the judge, does not qualify as a judgment under Code of Civil Procedure section 581d unless it is in writing, signed by the trial judge, and filed with the court.

In Powell, the plaintiff filed a civil rights action against the County of Orange and Orange County Sheriff, including two of its deputies.  Several years later, the trial court scheduled an order to show cause re dismissal due to plaintiff's lack of prosecution.  Plaintiff's attorney failed to show up at the hearing and the trial court issued a minute order dismissing the action.  The minute order was not signed and there was no formal, signed order prepared thereafter.

About seven months later, plaintiff's attorney filed a motion to set aside the "judgment" due to the attorney's fault in failing to "properly keep track of this case" and not responding to discovery.  The motion was denied.  New counsel for the plaintiff filed a motion to reconsider, which was also denied.  The plaintiff appealed from the order denying the motion for reconsideration.

The Court of Appeal (Fourth Appellate District, Division Three) in Santa Ana held that an order denying a motion for reconsideration is not appealable, even when the motion is based on new facts or law.  The opinion notes that Code of Civil Procedure section 1008, governing such motions, is being amended, effective January 1, 2012, to expressly provide an order denying a motion for reconsideration is not appealable, although if the order that was the subject of the motion is appeaalable, the denial of the motion for reconsideration can be reviewed by an appeal from that order.  (Opn. pgs. 5-6.) It did not help plaintiff that he labeled the motion alternatively as a motion to set aside the dismissal.  The motion was asking the trial court to re-decide the same previous motion.

The appellate court also held that an unsigned minute order was ineffective as a judgment of dismissal under Code of Civil Procedure section 581d, which requires a signed, written order that is filed with the court.  None was prepared in this case.  This error put plaintiff in the odd position, almost two years after the case was dismissed, of bringing a premature appeal as there was no judgment to appeal from.  In addition, the motion to set aside was also considered premature as no judgment had been entered that could be set aside by the trial court.

Even though the plaintiff had wasted a lot of money and time in bringing various motions and an appeal, he was now in the position of bringing a premature appeal.  Once the case goes back down to the superior court, a proper written order of dismissal will probably be prepared and the plaintiff will now have the ability to file an appeal from that judgment.  If he has the will and money to do so.


Creative language in legal documents

Okay, it's Friday morning and the sun is streaming through my window as I write this.  It's hard to be serious.  Apparently some attorneys and judges also find it hard to be serious.  The question arises as to how far the writer should go in using humor or other colorful language.

For instance, Mr. George Swinger (yes, that is his name; I don't make this stuff up) filed a notice of appeal with the United States District Court in the Western District of Washington.  In his notice, he writes:

I hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter. . . You have been hereby served notice.  You are not getting away with this shit that easy."

The docket in this case shows that the notice of appeal was filed on July 12, 2006, but in December, the court issued an order that the appeal was not taken in good faith and revoked appellant's in forma pauperis status, requiring him to pay the filing fees.  The appeal was ultimately dismissed due to failure to prosecute.

In a separate matter, Kissel v. Schwartz & Maines & Ruby Co., that was before the Kenton Circuit Court in Kentucky, Judge Martin Sheeham vacated a jury trial after the parties reached a settlement.  He writes:

"And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one-legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory;"

As one item in the order, the court ordered the clerk to "engage the services of a structural engineer to ascertain if the return of this file to the Clerk's office will exceed the maximum strctural load of the floors of said office."

Enjoy the weekend!





A review of An Appeal to Reason

If you are interested in what trial lawyers have to say about my book, check out Mitch Jackson's video review  

Mitch is one of the trial lawyers around and I think I know why.  First, he is interested in people and cares about what happens to them.  This week I received a phone call from a potential client, who complained bitterly about his attorney.  His complaints were not so much about the attorney's trial performance.  No, they were about how this client felt when he worked with his attorney.  For instance, the attorney seemed unfamiliar with his case and had to ask basic questions, including what the client did for a living.  The client believed the attorney was not unprepared and was just going through the motions.  Rather than being relieved to have a legal representative, the man seemed nervous about trusting his own attorney.  Mitch and I have talked about his cases, and it seems obvious that he cares about his client.

Second, Mitch is always open to improving and learning.  That means being open to working with an appellate attorney as part of his team.  I have to admit, sometimes I feel like I am in a battle with trial counsel.  Perhaps the trial attorney doesn't want another attorney analyzing his or her performance, or feels that as the trial attorney, he or she got the job done and an appeal is just another hoop to go through before getting paid.  The appellate attorney is not looking for ways to criticize the trial attorney; they must work together as a team.

Mitch is also putting himself out there in the new age of social media.  I have talked to many attorneys who are so resistant to having a web site, a Facebook account, Twitter, or even the new Google +.  They are unapologetic about their insistence on old technology.  I tell these attorneys that most of my clients have viewed my web site and read my blog long before they come in to see me.  In fact, I believe if an attorney doesn't have some presence on the Internet, they just might lose credibility, unless the potential client is also one who fears social media. 

I can still remember when attorneys could finally advertise and many were opposed to it.  Now you can find attorneys advertising in very creative ways, some good, some bad.  Attorneys have to keep up with the times.  Some of these devices can even make us more efficient and free us to spend more time on marketing or our cases.  Or better yet, they can free us to take the day off and go to the beach.


My baby has arrived! An Appeal to Reason is finally here!

After what seems like months, if not years, my book has finally arrived.  It looks beautiful.  Although I have never delivered a child, I am sure this is the next best thing.  Oh yeah, no late nights, no lack of sleep, and no crying (except for me).  Maybe it is the BEST thing.

This book is all me, with some help from various people, but from the beginning concept to the end product, this book has been a vision of mine for years.  (Okay, so every nonfiction author dreams of writing a novel, but that may be the next item on my agenda.)  The primary reason I wrote the darned thing was to help trial lawyers avoid mistakes at the superior court level that will hurt their chances on appeal.  For over 30 years, I have seen the same type of mistakes over and over again.  I have talked about them, lectured on them, written about them, but now, I have collected most of my wisdom - yes, even I have secrets - so that trial lawyers will benefit.

Someone recently asked me, "Let me get this straight, you are writing a book with advice, that if followed, will essentially put you out of work?"  Well, I didn't think of that way, and prefer not to, but I guess there is something to be said about that line of thinking.  No, I don't think that the appellate courts will close their doors if everyone follows my advice.  There still will be work for appellate attorneys.  But truthfully, if I am going to handle an appeal, I would want to be in the best position to win.  So, that is my hope for you trial attorneys after you have read the book. 


Appeals are about real people

Going through recent appellate decisions is something that I do on a daily basis.  Sometimes I am looking to see if a decision might have some application to an issue I am working on.  Other times I am looking for tips and warnings that I can pass on to others so they might avoid pitfalls in pursuing an appeal.  Once in a while I might stumble on a case that is interesting for other reasons. 

When I first started reading Kincaid v. Kincaid, 2011 Cal.App. LEXIS 800, I have to admit I was stunned.  The facts were enough to sadden me.  The appellant is the mother of a young woman, Shannon, who committed suicide by jumping off the roof of her mother's apartment complex.  Shannon was 11 years old when the appellant married Jeffrey Kincaid.  The appellant alleged that shortly after their marriage, respondent began torturing, molesting and raping the young girl.  The opinion described some of these acts, and noted that respondent threatened Shannon if she told anyone about his actions.  As a result, Shannon developed severe emotional problems and became dependent on alcohol and drugs.  After she received psychiatric help, a report was made to law enforcement.  Ultimately, the prosecution did not go forward with a criminal case due to insufficient evidence.  Several years later, Shannon committed suicide.

Mrs. Kincaid filed a wrongful death action, alleging that respondent's behavior was a substantial factor in causing her daughter's suicide.   The trial court granted respondent's motion for summary judgment, but the appellate court reversed the judgment, finding the trial court erred in refusing to admit a transcript of a recorded telephone conversation between the parties in which appellant confronted respondent.  This conversation, had it been admitted, would have created a triable issue as to whether the acts occurred.

This case stayed with me well after I finished reading the opinion.  I am not reporting on the law of the case.  The point that I wanted to make is that while appeals may deal with "judicial error" at the lower court level, the cases are still about people.  Yes, we can make them about the law, but we are missing an important ingredient if we overlook the story behind the appeal.  When dealing with clients, an attorney must be mindful of the story, because the appellant's motivation in pursuing a wrongful death action for the loss of her daughter may mean more to her than just obtaining an award of damages.  And respondent's fight to avoid a finding of liability may also mean more to him than just paying damages.  Motivation is also an important consideration.  But when you are presenting a client's story to the appellate court, remember that you are dealing with real people and try to write your briefs in a way that brings that story alive.  No matter how painful that might be.