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Can I , the losing party , request a trial court grant a final appeal able order as well as a statement of decision ?

Long Beach, CA |
Filed under: Civil motions

My lawsuit progressed through 3 Defendants' demurrers , only partly sustained , and a trial was set . But I appealed as to several dismissed Defendants . A new trial court judge assigned would not stay the remainder of the lawsuit , neither would the appellate court on my petition for writ of supersedeas . The Defendants filed two motions for summary judgment , and I could not respond in the ( appx . ) 50 days time , and needed 30 more days , which was denied to me too . I could not file an opposition . The court also granted its own motions to strike / judgment on pleadings . I appealed . But appellate ct . says I did not appeal from appealable order ! ? Says I must comply with Cal . R . of Ct . 3 . 1312 , and seek order . But that rule does not apply to unopposed motions ! ? What am I supposed to do ?

Attorney Answers 3


"What am I supposed to do?" -- Your question does not contain the necessary facts for anyone here to answer it for you. You should promptly consult an appellate attorney to review the court file/docket to determine what you can do at this time.

You need to review CRC Rule 3.1312 again. Specifically this provision: "This rule does not apply if the motion was unopposed and a proposed order was submitted with the moving papers, unless otherwise ordered by the court."

If the court granted its own motion to strike and judgment -- it is unlikely any proposed order was submitted. It appears, from your question, that you still need a written order/judgment signed by the judge before you can appeal. OTOH, perhaps the opposing party submitted an order and you appealed from the wrong order AND your time to appeal has run.

This area of the law is very tricky. I can almost guarantee you you will not be able to properly perfect a timely appeal unless you consult appellate counsel who most likely will have to charge you for their investigation time. This area of the law is full of pitfalls and few attorneys are willing to advise without a thorough investigation of the facts. Good luck.

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If no appealable judgment has yet been submitted, you may submit your own. Circulate it to your adversaries or their attorneys, first, as stated in the rule.

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Your appeal can only be taken from a final judgment, which means (1) a judgment must have been entered by the court clerk (not merely signed or stamped by the judge) and (2) a copy of the judgment was served on the parties with a notice of entry of judgment. Service of the notice of entry of judgment starts the clock running for an appeal. I agree with the other attorney that you need to hire an attorney to help you. Your situation is complicated and it is unclear from the facts you've stated whether you are entitled to request a statement of decision and where the case stands procedurally.

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