Metropolitan News-Enterprise


Friday, September 24, 2004


Page 1


C.A. Warns of ‘Trap for the Unwary’ in Law on Dismissals for Inconvenient Forum


By a MetNews Staff Writer


A dismissal of an action on inconvenient forum grounds is a final, appealable judgment even if it is in the form of an unsigned minute order, the Fourth District Court of Appeal has ruled.

Warning of a statutory “trap for the unwary,” Div. Three Wednesday dismissed an appeal from an order dismissing an intellectual property suit. The defendant, Virginia software firm Icode Corp., sought the dismissal of the action by Quest International, Inc. on the ground that the licensing agreement on which the suit was based required that any litigation be brought in Virginia.

The case, as described by Presiding Justice David Sills for the Court of Appeal, involved a convoluted series of proceedings in which Orange Superior Court Judge Dennis Choate successively denied the motion to dismiss, reconsidered on his own motion, entered an unsigned minute order granting dismissal, then granted a formal motion to reconsider under Code of Civil Procedure Sec. 1008.

“But, after ‘reconsidering,’ the trial court re-affirmed its (reconsidered!) decision to grant the motion to dismiss,” Sills explained. “However, this time it entered not a simple order granting the motion to dismiss, but an order directly ‘dismissing’ [the] case, an order which also specifically required preparation of a formal order of dismissal by defense counsel.”

Further delaying matters, the presiding justice said, defense counsel never got around to preparing the order. More than seven months later, however, plaintiff’s counsel prepared his own order, obtained the judge’s signature, and filed an appeal 59 days later.

The appeal was untimely, Sills explained, because it was filed more than 180 days after entry of the minute order.

In an opinion fortified by citations to Shakespeare, the Bible, and Stephen Sondheim, the jurist went on to explain that in the normal case, an unsigned minute order is not a final order and therefore does not trigger the time in which to appeal. But Code of Civil Procedure Sec. 904.1(a)(3), Sills wrote, “creates a counterintuitive exception, because it makes even unsigned minute orders granting motions to dismiss for inconvenient forum directly appealable.”

He continued:

“Further, such an order — unlike some other appealable orders under section 904.1 — constitutes a ‘final judgment’ as the term is defined in section 577.   But, and here’s the real trap — as a final judgment it cannot be attacked by a motion for reconsideration.  In fact, the trial court does not even possess the authority to undo or amend it, on its own motion or prompted by a litigant.”

Thus, the unsigned order of dismissal was the only appealable order in the case, and the appellate panel was “reluctantly” required to dismiss the appeal, Sills said.

He elaborated:

“With these conclusions, Quest’s California appeal must die its death.  Venue was conclusively established to be in Virginia by an order final as of mid-January [2003; the appeal was filed in May of that year] though perhaps it is some comfort to realize that Quest should be able to obtain a fair hearing on its claims of lousy software produced by Icode just as much in Virginia as in California.  That’s certainly a better prospect than history’s most famous change-of-venue case, [the Vatican’s assumption of Henry VIII’s divorce case] where the losing lawyer [Cardinal Wolsey] got himself arrested for treason because of the venue change.”

The case is Quest International, Inc. v. Icode Corp., 04 S.O.S. 5189.


Copyright 2004, Metropolitan News Company