214 Cal. App. 4th 472
Cal. Ct. App.2013Background
- Miller moved to compel complete discovery responses and Good was ordered to provide them by November 15, 2010.
- Miller sought monetary and terminating sanctions on January 5, 2011 for willful noncompliance.
- An order granting terminating sanctions was entered on May 11, 2011.
- Good filed a notice of appeal from the terminating sanctions order on July 11, 2011, mischaracterizing it as an order dismissing Miller.
- A Miller-side judgment in Miller’s favor was filed on July 26, 2011; Good’s opening brief argued timeliness following Judgment, not the nonappealable order.
- The appellate court declined to salvage the premature appeal from a nonappealable order and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the premature appeal from a nonappealable order may be salvaged. | Good contends timing should be treated as after judgment. | Miller argues the order is nonappealable and cannot be salvaged. | No salvage; discretionary relief denied. |
| Whether Good requested the court to salvage the appeal. | Good did not ask for relief to salvage the appeal. | Miller contends absence of request bars relief. | Relief denied for failure to request it. |
| Whether Good misstated appealability in briefing. | Good claimed the appeal was timely after judgment. | Miller highlighted the misstatement and nonappealability. | Misstatement weighed against relief; appeal dismissed. |
Key Cases Cited
- Cohen v. Equitable Life Assurance Society, 196 Cal.App.3d 669 (Cal. App. 1987) (limits on salvaging premature appeals)
- Nickell v. Matlock, 206 Cal.App.4th 934 (Cal. App. 2012) (nonappealable orders and 8.104 implications)
- Giannuzzi v. State of California, 17 Cal.App.4th 462 (Cal. App. 1993) (Rule 8.104 discretionary vs mandatory)
- Walker v. Los Angeles County Metropolitan Transit Authority, 35 Cal.4th 15 (Cal. 2005) (liberality in notices of appeal; relief context)
- Allabach v. Santa Clara County Fair Assn., 46 Cal.App.4th 1007 (Cal. App. 1996) (relief where failure to perfect caused procedural defect)
- Lester v. Lennane, 84 Cal.App.4th 536 (Cal. App. 2000) (appealability statements and misleads in briefing)
- Boyer v. Jensen, 129 Cal.App.4th 62 (Cal. App. 2005) (judgment review when appeal challenged on timing)
- Modica v. Merin, 234 Cal.App.3d 1072 (Cal. App. 1991) (discretion to salvage defective appeals)
- Evola v. Wendt Construction Co., 158 Cal.App.2d 658 (Cal. App. 1958) (rendition of judgment concept in appeals)