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  • 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





Appealing from a Non-Appealable Order?  Really?

I have often counseled attorneys against filing an appeal from non-appealable orders.  I have seen attorneys jump the gun and appeal tentative decisions, statements of decisions, and orders granting summary judgment or sustaining demurrers without leave to amend.  While the general rule is that you appeal from a final judgment that disposes of the issues between the parties, there are plenty of exceptions.  It is wise - even for an experienced appellate attorneys - to check on what is an appealable order or judgment every time you intend to file an appeal.

If you file a premature appeal from a nonappealable order, the appellate courts have the discretion, pursuant to California Rules of Court, rule 8.104(d)(2), to save your appeal.  But don't count on it.  Certainly Scott Good couldn't count on it.  In Good v. Miller, 2013 Cal.App. LEXIS 189, decided by the Third Appellate District, Good filed an appeal from an order granting terminating sanctions, a nonappealable order.  Judgment was filed over two months later.

In his opening brief, Good claimed he was timely appealing from "Entry of Judgment."  The respondents noted, first in a mediation statement, and then as the first argument in their Respondents' Brief, that Good was appealing from a nonappealable order.  Good failed to respond to this argument.

The appellate court stated it was publishing its opinion dismissing the appeal to "illustrate [the] limit" of its willingness to salvage an appeal and "to emphasize that it is imperative to appeal from an appealable order."  (Opn., pg. 2; italics in original.)  It declined to save Good's appeal for three reasons:

1.  Good did not request the court's assistance in saving his appeal, despite the fact he received at least two notices of the defect.  The court stated, "We are disinclined to exercise discretion in favor of a party who declines to ask us to do so."  (Opn., pg. 4.)

2.  Good ignore respondent's notice of the defect.  The appellate court concluded Good was not just ignorant of appellate procedural rules, but was exercising a "stubborn refusal to follow the rules even after they have been explained.'"  (Opn., pg. 4.)

3.  Good misstated the relevant facts in the "appealability" section of his Appellant's Opening Brief, which is required by California Rules of Court, rule 8.204(a)(2)(B).

Good's appeal was dismissed, long after he might have been able to cure his defect and appeal from the final judgment.

What can go wrong with an appeal?

      In a recent unpublished opinion, Charles Virzi Construction, Inc. v. Studer, #G044326, Justice Ikola addressed what can go wrong with an appeal.  While attorneys may make one or two mistakes, this opinion reads as an encyclopedia of what not to do, leaving the Court to conclude that plaintiff "Virzi's briefs and the record on appeal are voluminous, but fundamentally inadequate."  (Opn., pg. 2) 

This appeal was brought by a construction company that was suing Studer  for the balance due on a remodel of a home in San Clemente.  The owners cross-complained, alleging Virz breached the contract by his negligent performance. The trial court issued a 17-page statement of decision finding for the homeowner, awarding Studer $150,000 in compensatory damages.  With costs and fees, the total judgment came to $566,210. 

            The appeal court granted Virzi's request to file an oversized opening brief, which Justice Ikola opined, "In hindsight, that may have been improvident."  (Opn., pg. 10.)  The appellants' opening brief was 138 pages with "64 separately numbered issues, sub-issues, sub-sub-issues, and sub-sub-sub-issues."  Whoa!  If you think the brief containedeverything, including the kitchen sink, you would be wrong.  So, what was it missing? 

            How about a "concise statement of facts supporting the judgment."  (Opn., pg. 10; emphasis added.)  Virzi was challenging the judgment on substantial evidence grounds, but failed to include all of the relevant evidence supporting the trial court's findings on three out of four elements of a breach of contract action.  The court stated, "Reading only those pages, one would conclude Virzi built the perfect home." (Id.)   Studer's evidence was scattered about the rest of the brief.  The court said, "This is woefully inadequate."  (Id. 

            Appellants frequently rely on their evidence in a substantial evidence challenge, ignoring the respondent's evidence or the evidence as a whole.  Not good enough, according to Justice Ikola.   The court highlighted some of the defects in Virzi's performance, including fire hazards or code violations.  

            Next?  The appellants did not transmit the trial exhibits, even though they heavily relied on them and referred to 28 exhibits in their briefs, ignoring California Rules of Court, rule 8.224(a)(1) and (b)(1).  If the exhibits are not transmitted, the appellate court will presume they do not undermine the judgment.  (Opn., pgs. 11-12.) 

            Let's say the exhibits were transmitted.  When referring to exhibits, especially those that are voluminous, a party must include the page number.  In a footnote, the court wrote, "'Counsel is obligated to refer us to the portions of the record supporting his or her contentions on appeal.'"  (Opn., pg. 11, fn. 3.) 

            The court noted that Virzi was improperly attempting to retry the case on appeal.  But the appellate courts do not reweigh the evidence or consider the credibility of a witness.  They are not, as Justice Ikola noted, "'a second tier of fact.'"  (Opn., pg. 12.) 

            Could matters get any worse?  Well, if you attack the statement of decision, but fail to appropriately address the trial court's actions, you might have a bit of a problem.  Not only did Virzi tear apart the statement of decision, but they raised the court's failure to address Virzi's 22-page request, which the appellate court found to be "ineffective," because it "improperly sought 'an inquisition, a rehearing of the evidence' by asking for findings on 86 separately numbered issues.'"  (Opn., pg. 13.) 

            To make matters worse - as if it could be done - Virzi attacked contract formation, even though it conceded the damages would have been the same under either possible version of the contract, thus lacking any real significance.  

            The appellate court also found Virzi waived the right to challenge certain costs but that waiver was done at the trial level.  (Opn., pg. 21)  Oh, but the same attorney who handled the trial also handled the appeal. 

            Then, to cap it all off, Virzi argued the trial court was without jurisdiction to award certain costs because a notice of appeal was filed.  But guess what?  The notice was premature.  Virzi did not appeal from a judgment that was final. 

            What did Virzi get for all his attorney's fine work?  The judgment as to the award of attorney's fees was reduced $17,020 to $549,190.85.  Given the ongoing interest and costs and fees in handling appeal, this effort was hardly worth it, except to provide some classic textbook examples of what not to do in handling an appeal.



Serving the legal community through photography

During a silent auction at a recent OCTLA Top Gun event, Judge Franz Miller bid on - and won - my print of Vinales, Cuba.  The finest tobacco in Cuba is grown in this region, which is also popular with tourists because of its unsurpassed beauty.  When Judge Miller learned Judge Francisco Firmat was retiring, he wanted to give his friend a gift.  Judge Firmat is Cuban but left his home when he was 11 years old and hasn't returned since.  When Judge Miller gave his friend the print, he discovered Judge Firmat already had an oil painting of Vinales hanging on his chambers' wall of the exact same scene!  The oil painting had been commissioned by Judge Firmat from a Cuban painter over 30 years before!  I had a chance to visit with Judge Firmat and he showed me that some of the shacks were still there.  It was very gratifying for me.  I could see how much he enjoyed the print and how Judge Miller, without knowing the history of the scene, had given his friend a very special gift.  And I was a part of it!.


Appellate victory results in a 2013 CLAY Award by California Lawyer.

They, whoever they are, say that when it rains, it pours.  Most of the time that means bad news comes in buckets, but occasionally, good news comes our way.  In this case, my way.  Not only did I have my first gallery opening for my photography last Saturday, but only one day earlier, California Lawyer put out a press release announcing that Mitch Jackson and I were CLAY (California Lawyer of the Year) Award winners for 2013.  California Lawyer named 60 attorneys for 27 accomplishments in 21 areas of legal practice.   Mitch and I won in the category of "litigation" for our "precedent-setting victory for pet owners when a court of appeal upheld a jury award to a married couple for emotional distress they were caused by the injury of their dog."  (Press Release)


Mitch Jackson was the trial attorney and I handled the appellate work, all the way up to a petition for review to the California Supreme Court, which was later denied.  The decision by the Court of Appeal, Fourth Appellate District, Division Three can be found at Plotnik v. Meihaus (2012)  208 Cal.App.4th 1590.  It was a gratifying win for both us in a case dealing with years of harassment by neighbors against our clients.   Our clients' dog Romeo suffered injuries, including a dislocated hip, when the neighbor hit the dog with a baseball bat.  Being an animal lover, this was one of the best wins of my life (although my dog doesn't seem too impressed)!



Creativity in appellate briefs

Judges will often encourage attorneys to be "brief" in preparing their briefs.  I like this story:  a lawyer who wanted to file an amicus brief, opposing the Justice Department's proposed antitrust settlement with three publishers of e-books, was given a five-page limit.  Most attorneys would be upset by this.  What can anyone say in five pages?  The attorney decided to file the brief as a cartoon or, as he called it, a "graphic novelette."  The attorney's daughter prepared the illustrations.  The brief had a table of authorities, and then the comic strip followed, with the first panel showing the judge ordering a five-page limit.  Sounds like a good way to distill arguments to their essence.   You can find more information about the brief and a PDF of the cartoon here:



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