..Cases and Materials on California Civil Procedure, 3d ed. (ThomsonWest 2008) All Rights Reserved

............................................................Chapter 8: Appellate Review

.........................................................B. Appealability
1. Appealable Judgments and Orders
(a) One Final Judgment Rule
p. 845, Note 3(g), following Conley cite: An order denying certification of a class action is considered a final order subject to immediate appeal under the "death knell doctrine." The appeal is permitted because "the action has in fact and law come to an end, as far as the members of the alleged class are concerned." The parameters of the death knell doctrine are narrowly defined to encompass only orders denying class certification. The doctrine does not apply to other class action orders, such as orders granting certification or directing service of notice to class members. Farwell v. Sunset Mesa Property Owners Association, Inc., ___Cal.App.4th___, ___Cal.Rptr.3d___ (2008) [2008 WL 2440522].

.....(b) Interlocutory Judgments and Orders
p. 850, Note 3, following Annette F. cite: See also Morton v. Wagner, 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818 (2007) (noting split of authority and aligning with the majority of recent cases that have found orders denying motions for reconsideration to be nonappealable).

.....(c) Collateral Orders
p. 856, new Note 8: Similar to the plaintiff in Ponce-Bran who relied on the collateral order doctrine, a father in a paternity and child support action argued that the Court of Appeal should review a trial court order for genetic testing as a collateral order. While the order was final on the issue it determined, and it ordered the father to perform an act, the Court of Appeal dismissed the appeal because the order was not collateral to or severable from the merits of the action. Also like Ponce-Bran, the Court also declined to treat the purported appeal as a petition for an extraordinary writ. Although the order arose out of an unusual set of factual circumstances, the order did not raise questions "of general importance to the trial courts and to the profession." San Joaquin County Department of Child Support Services v. Winn, 163 Cal.App.4th 296, 77 Cal.Rptr.3d 470 (2008).

...............................................C. Other Requirements for Appellate Review
2. Timely Notice of Appeal
p. 873, Note 3, following Hollister Convalescent Hospital cite: However, the Court of Appeal has permitted an incarcerated pro per litigant seeking to appeal a civil judgment to rely on the "prison-delivery rule" ordinarily applicable only to prisoners filing criminal appeals. The prison-delivery rule deems a notice of appeal timely as long as it was delivered to prison officials within the required period for filing the notice. There is no language in the relevant California civil rules of court that would prohibit the application of the prison-delivery rule to civil appeals. Shufelt v. Hall, ___Cal.App.4th ___, 77 Cal.Rptr.3d 900 (2008).

p. 873, Note 4: Appellants (and even trial courts) sometimes seek imaginative ways to mitigate the onerous effects of the appellate timing rules. In one case, a plaintiff had not learned of the entry of judgment against her until seven months later because statutorily-required notice of entry had not been provided by the defendant or the clerk of the court. The trial court vacated the judgment as void and reinstated the judgment as of the date of the order, permitting the plaintiff to file a "timely" notice of appeal. The Court of Appeal dismissed the appeal, stating that the trial court lacked jurisdiction to vacate the judgment due to the failure to provide the required notice of entry of judgment. In the absence of the notice of entry, the plaintiff should have filed her notice of appeal within 180 days of the original entry of judgment, pursuant to CRC 8.104(a)(3). Avenue v. Franco, ___Cal.App.4th ___, ___Cal.Rptr.3d___ (2008) [2008 WL 2358732].

p. 874, Note 4, new second paragraph: Recall the Edible Widgets Hypothetical in Chapter 1, Section E. Assume that Pam prevailed in her personal injury lawsuit against Dan, and the court entered judgment on June 19. Anna had represented Dan as his attorney of record throughout the trial court proceedings A few weeks before the trial, Dan associated additional counsel, Andy. On the same day the trial court entered its judgment for Pam, the court clerk mailed notice of entry of judgment to Anna but not to Andy. Dan then filed a motion for new trial. The trial court entered an order denying the motion on August 7. The clerk mailed notice of entry of the order on the same day to only Anna, not Andy. On September 7, Dan filed a notice of appeal from the judgment and from the order denying a new trial. Dan contends that he had 180 days after entry of judgment to file his notice of appeal because the court clerk mailed notice of entry of the judgment and order to only one of his two attorneys. However, since at least one of Dan's attorneys of record received actual notice of the entry of the judgment and order, the clerk's mailing was sufficient to require Dan to file his notice of appeal of the judgment within 30 days after entry of the order denying a new trial (CRC 8.108(b)). His September 7 notice of appeal was therefore untimely, and his appeal must be dismissed. See Adaimy v. Ruhl, 160 Cal.App.4th 583, 72 Cal.Rptr.3d 926 (2008).

................................................................D. Standard of Review
p. 883, Note 3, new second paragraph: Varying standards of review may apply to the appeal of a trial court order, depending, among other things, on whether the order denies or grants a motion. For example, on review of an order denying a motion for new trial, the appellate court applies a de novo (independent) review standard. However, if the trial court denied the motion and provided a statement of its reasons, the applicable standard is abuse of discretion. In cases where the trial court has granted the motion for new trial, but it has not adequately supplied its reasons (as required by CCP § 657), the de novo standard applies. Whitlock v. Foster Wheeler, LLC, 160 Cal.App.4th 149, 72 Cal.Rptr.3d 369 (2008).

....................................................E. Prejudicial versus Harmless Error
p. 894, Note 2: In Ayala v. Arroyo Vista Family Health Center, 160 Cal.App.4th 1350, 73 Cal.Rptr.3d 486 (2008), the plaintiff argued that the judgment for the defendants was based on prejudicial error because the court gave an erroneous jury instruction that was not supported by the evidence. Although the Court of Appeal agreed that the instruction was erroneous, it found the error harmless under the five factors set out in Soule, focusing particularly on whether other instructions remedied the error. The court concluded that the error would not reasonably have resulted in a more favorable outcome for the plaintiff..

...............................................................F. Appellate Sanctions
.....(a) Frivolous Appeal
p. 895, first paragraph: An appeal that is frivolous (without merit) or is prosecuted solely to cause delay may be dismissed, either under the court's inherent power or pursuant to statute (CCP § 907) or rule of court (CRC 8.276(a)). The determination of a frivolous appeal is based on an objective standard, while the analysis that an appeal has been filed solely to cause delay is measured by a subjective standard. Although frivolousness or delay each provides an independent ground for sanctions, the two standards are frequently combined, such that total lack of merit serves as evidence of intent to delay. In re Marriage of Gong and Kwong, ___Cal.App.4th___, 77 Cal.Rptr.3d 540 (2008).

...