New decision on appealable orders: Sisemore v. Master Financial, Inc.

In Sisemore v. Master Financial, Inc., ___ Cal.App.4th ___ (Jun. 12, 2007), the Court of Appeal (Sixth Appellate District) reiterated a rule that should be familiar to experienced appellate attorneys — when a demurrer is sustained without leave to amend, the notice of appeal should be from the judgment of dismissal, not the order sustaining the demurrer. The court makes the further point that when no formal judgment has been entered, the order sustaining the demurrer may be deemed to incorporate such a judgment:

We are confronted initially with whether the matter from which the appeals have been taken is properly appealable. Although Master Financial here does not argue that plaintiffs’ separate appeals are defective because they challenge a nonappealable order, we cannot overlook this potential procedural infirmity: “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citations.]” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) Since this issue is central to our jurisdiction, we address it on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390, 398; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436.)

The purported appeals taken by plaintiffs were from the order sustaining the demurrer. The record does not reflect the entry of a judgment or a dismissal on the demurrer order. An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order. (Berri v. Superior Court (1955) 43 Cal.2d 856, 860; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) On occasion, however, appellate courts have reviewed such orders, based upon justifications such as the avoidance of delay, the interests of justice, and the apparent intent of the trial court to have a formal judgment filed. (Reyna v. City and County of San Francisco (1977) 69 Cal.App.3d 876, 879.) And when the trial court has sustained a demurrer to all of the complaint’s causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098; see also Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520 [appeal from order sustaining demurrer without leave to amend deemed proper to avoid delay and in furtherance of justice].)

Here, the order sustaining the demurrer to each of the four causes of action of the Complaint without leave to amend effectively ended plaintiffs’ ability to proceed further with their case below. The only step left to make the order appealable was the formal entry of a dismissal order or judgment. We will accordingly deem the order on the demurrer to incorporate a judgment of dismissal and will review the order. (Thaler v. Household Finance Corp., supra, 80 Cal.App.4th at p. 1098.)

Slip op. at 6-7. This outcome seems only fair, given that either the clerk or the defendant (not the plaintiff) should be responsible for making sure that a formal judgment of dismissal is entered.

Comments

[Greg May]

It's funny how the courts keep warning that they are running out of patience with parties appealing from nonappealable orders, but continue to save such appeals fairly regularly anyway! Will they ever really run out of patience and stop doing so? It seems they could stop if they wanted to. After all, don't the courts view "saves" as discretionary acts?

But it seems the Supreme Court put some limits on that discretion a few years ago in Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, in which they held that a court "should" save appeals in certain circumstances (though I don't think the rationale applies to premature appeals).