Blauser v. Diubin: Whether order is signed or unsigned, appeal must be from final judgment and not "minute order" granting nonsuit

 

Appellate court explains the crucial difference between a minute order and a judgment 

The old maxim holds true:  appealability is jurisdictional, meaning that an appellate court lacks jurisdiction to consider an appeal from a non-appealable order.  In California and most other jurisdictions, an appeal must be taken from a final judgment or an order made appealable by statute.  This is illustrated by the opinion of the Fourth District, Division Three, in Blauser v. Dubin (November 19, 2024) G063715 (https://law.justia.com/cases/california/court-of-appeal/2024/g063715.html).

In one of the typically concise and well-written opinions from the Fourth District, Division Three, the court explained the appellant's opening brief referenced a "judgment of dismissal" despite the fact the trial court adopted the increasingly common practice of not issuing any sort of final judgment.  Rather, the court granted a motion for nonsuit, a motion arguing the claim of one party against another cannot go forward, by way of an unsigned "minute order."   Such are prepared by the Clerk and entered in the record, often without the Judge's signature.

This caught the appellate court's attention, which asked the parties to brief the issue of whether the appeal was proper.  The appellant then obtained a signed copy of the minute order, filing a "notice of entry of judgment" attaching the signed order, and then filing the notice of entry of judgment in the trial and appellate courts.

The appellate court explained this signed minute order did not constitute a final judgment or order appealable by statute:

Though now signed, the minute order is (still) not labeled as a

“judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)

Orders granting nonsuit motions are not among the appealable orders listed in section 904.1. “Although an order granting a nonsuit is nonappealable, an appeal can be taken from the subsequent judgment of nonsuit.” (4 Cal.Jur.3d (2024) Appellate Review, § 58; see Smith v. Roach (1975) 53 Cal.App.3d 893, 895, fn. 1.) “[I]nsofar as the appeal purports to be from the minute order granting the motion for nonsuit, it is premature and must be dismissed.” (Bauer v. Jackson (1971) 15 Cal.App.3d 358, 363, fn. 1.) (Id., p. 3.)

The Fourth District rejected the argument the a minute order and judgment are "functionally equivalent," noting such an approach would lead to confusion as to what is and is not appealable.  Moreover, the court noted California's Code of Civil Procedure section 581c(c) regarding dismissals contemplates a motion for nonsuit shall be followed by an actual signed judgment. 

The appeal was therefore dismissed without prejudice to be refiled once a final judgment or appealable order had been obtained.

Lessons for practitioners

Even though section 581c(c) provides a motion for nonsuit shall be an "adjudication on the merits," unless there is a judgment as a to particular party, that party may not appeal the granting of the nonsuit.  Alternatively, a signed "order of dismissal" is equivalent to a judgment per Code of Civil Procedure section 581d.  However, an order of dismissal must actually state a party is dismissed and should be entitled an "Order of Dismissal of [name of party]" and make specific reference to section 581d in order to make this crystal clear.

More broadly, for the sake of clarity any "minute order" or other order of the court that a party wishes to appeal should be reduced to a judgment.  Further, this judgment should be signed by the Court and attached to a "notice of entry of judgment" filed with the trial court and served upon all parties, this being crucial because doing so starts the 60-day period in which an opposing party may appeal.  If this notice is not given the other party may have up to 180 days to appeal resulting in a surprise "notice of appeal" once the case has been long-closed.  Of course, in any timely appeal, this "notice of entry of judgment" should be made part of the appellate record.

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