Request for Dismissal May Constitute Appealable Final Judgment: Say What?

  Final judgments are appealable. Some orders are appealable. The time to appeal is jurisdictional. If you appeal from an order or judgment too late, your appeal must be dismissed. California Rules of Court, Rule 8.104 sets forth the time to appeal in an unlimited civil case. The general rules for time to appeal are as follows: One must file the appeal on or before the earliest of the following:

  • 60 days after the superior court clerk mails the party filing the appeal a notice of entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
  • 60 days after the appellant serves or is served by a party with a notice of entry of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or
  • 180 days after entry of judgment.

 Code of Civil Procedure § 904.1(a) codifies the “one final judgment” rule” in unlimited civil cases. A judgment is final when it leaves nothing to be determined between the parties but enforcement or compliance with its terms. (See, Sullivan v. Delta Air Lines, Inc.). Despite codification, the rules regarding the time to appeal are complex, not nearly as simple as the above general rules imply, and are full of traps for everyone but seasoned appellate lawyers.

  For example — even though the court did not enter a judgment of dismissal until more than 6 months later — plaintiff’s filing of a request for dismissal of all remaining claims after an adverse summary adjudication order was entered, to facilitate the filing of an appeal, was determined to be an immediately appealable judgment the day it was filed. In Dattani v. Lee the court concluded that an appealable judgment was created under such circumstances and therefore the appeal, taken more than 180 days after the request was filed, was untimely.

  Specifically, the court held that the mere filing of the request for dismissal, without further action by the clerk, dismissed the remaining claims from the suit and created an appealable judgment from which plaintiffs could have contested the summary adjudication ruling. The dismissal of the remaining claims without prejudice therefore operated as a final judgment that resolved all the claims between the parties.  Otherwise, there would be no consequence to a plaintiff who dismisses claims to facilitate appellate review but delays years before seeking entry of judgment.  At some point a defendant is entitled to finality. The appeal was dismissed.

  UPDATE: On April 9, 2014 by order of the Supreme Court, on the court’s own motion, the court of appeal’s opinion in Dattani v. Lee was ordered depublished and the Reporter of Decisions was directed not to publish it in the Official Appellate Reports.The opinion in the above entitled appeal filed December 19, 2013, which appears at 222 Cal.App.4th 411, 222 Cal.App4th 944d may not be cited.


  Mr. Daymude consults with clients and accepts cases involving appeals from judgments and appealable orders. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Jump to top