Another Premature Appeal Saved — Should it Be?

The Appellate Practitioner brings to our attention the Sixth District Court of Appeal’s decision in Sisemore v. Master Financial, Inc., case no. H029138 (June 12, 2007), in which the court “saves” a premature appeal. Sisemore appealed from an order sustaining a demurrer to her complaint without leave to amend. The court saves the premature appeal by construing the order to incorporate a judgment of dismissal. This is an accepted practice.

Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.

In Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, the Supreme Court reversed a judgment of the Court of Appeal dismissing an appeal from an order denying a new trial. The Court of Appeal held that it lacked jurisdiction because the order denying a new trial was not appealable. The Supreme Court reversed. It upheld the practice of “saving” such appeals by construing the notice of appeal as an appeal from the underlying judgment, so long as it is “reasonably clear” that the appellant was trying to appeal from the judgment and the respondent suffers no prejudice. (Id. at p. 18.) The Supreme Court dismissed the respondent’s concern that allowing such saves “would needlessly cause uncertainty” because attorneys are on notice through practice guides and treatises that courts will save such appeals. (Id. at p. 22.) Finally, the Supreme Court relied on the law’s preference for “substance over formalism.” (Id.)

Sisemore-type situations are sufficiently distinct from Walker to invite another challenge. In Walker, the Supreme Court made plain that liberal construction of a notice of appeal to encompass the underlying judgment is constitutionally permissible because appellate jurisdiction is conferred by the existence of the underlying judgment. In Sisemore-type situations, there is no existing judgment; the only judgment is that which the court decides to read into the order. Saving the appeal in this instance requirees a liberal construction of the court order, not of the notice of appeal.

But it would be the unusual case that warrants a Supreme Court challenge. Dismissal of a premature appeal would be of limited utility because it would not affect the appellant’s right to appeal from a judgment entered later. What if the appellant appealed from the order sustaining the demurrer, judgment was thereafter entered, and the time to appeal from the judgment ran out while the appeal was pending? In that situation, there would be an existing judgment, and it is more likely that the Walker analysis would apply.

Counsel would do well to remember that such “saves” have typically been viewed as discretionary, and they should not rely on the practice. It is not hard to find decisions warning of reduced tolerance for appeals from nonappealable orders. (See, e.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶¶ 2:262 to 2:263, pp. 2-120 to 2-121 (rev. # 1, 2004).) For this reason, it is somewhat hard to accept the Supreme Court’s dismissal of the concern that such saves create uncertainty.