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.

                                                                      Ouch!