Key Decisions

April 2013 – Only Appealable Orders Are Appealable

(filed under: Key Decisions Archive | April 10, 2013)

Only Appealable Orders Are Appealable

Good v. Miller
(Cal. Ct. of App., 3d Dist.), filed March 13, 2013

Scott Good sued Patrick Miller, United Truck Insurance Services, and Sutter Insurance Company alleging a dispute over an insurance policy.

On October 26, 2010, the trial court had granted Miller’s unopposed motions to compel responses to discovery requests, ordering Good to provide “complete responses . . . without objections” no later than November 15, 2010.

On January 5, 2011, Miller sought monetary and terminating sanctions, alleging willful noncompliance with the order compelling discovery.

On May 11, 2011, the court entered an order granting terminating sanctions.  That same day Good filed a notice of appeal from that order.

On July 26, 2011, the court filed a judgment in favor of Miller.

On August 15, 2011, Miller filed a civil appeal mediation statement.  In it, Miller asserted that Good’s appeal had been taken from a nonappealable order.

Good filed his opening brief on August 3, 2012.  Under the section addressing appealability, he incorrectly asserted that the notice of appeal “was timely filed following the Entry of Judgment in this matter.”

The first argument in Miller’s respondent’s brief sought dismissal of the appeal on the ground that Good was attempting to appeal from a nonappealable order.

Good’s reply brief failed to respond to this argument.

The Court of Appeal dismissed Good’s appeal as being from a nonappealable order.  It explained:

Although under certain circumstances we have discretion to permit a premature appeal from a nonappealable order to be treated as timely filed after the ensuing judgment, there is a limit to our willingness to salvage appeals for parties “who ignore the statutory limitations on appealable orders.”

It then held:  “In this case, plaintiff has exceeded that limit.”  To aid legal community, they published its decision “to emphasize that it is imperative to appeal from an appealable order.”

The court noted three reasons why it opted not to salvage Good’s case:

First and foremost, Good did not ask the court to do so despite notice in the form of Miller’s civil appeal mediation statement and argument in his appellate briefing.  Second, Miller repeatedly raised the issue and Good repeatedly ignored it.  Third, Good misstated the relevant facts in the “Appealability” section of his briefing.