Metropolitan News-Enterprise


Friday, August 10, 2012


Page 1


Appeal Dismissed, Though Case Was Fully Briefed, After Discovery There Was No Judgment


By a MetNews Staff Writer


The Court of Appeal in Orange County yesterday dismissed an appeal from an order granting summary judgment because the appellant never got a judgment entered.

The action was taken after an appellant’s brief was filed by attorney Christopher J. Hennes, a respondent’s brief was filed by Redlands attorney Gene Stephen Stone. With no reply brief being filed, the case being deemed fully briefed and assigned to a panel.

Oral argument not being requested, it was deemed waived, and the case appeared ready for decision.

Someone in the court then noticed there was no judgment in the appendix.

Writing for the Fourth District’s Div. Three, Justice Eileen C. Moore recited that the panel issued an order on June 26 saying that the appeal would be dismissed if a judgment were not filed by noon on July 3; on that date, the appellant, Karen Shiohama (apparently having severed relations with Hennes), told the court that she discovered there was no judgment in the Superior Court file, and she was given until Aug. 3, 2012 to obtain a judgment.

On Aug. 3 she faxed a request to the court asking for an additional 10 days because she had received no response from the respondent’s lawyer as to obtaining a judgment.

“Appellant has had ample opportunity to obtain a judgment in this matter,” Moore wrote. “The extension request is denied. The appeal is dismissed as taken from a nonappealable order.”

The case was not certified for publication. A 2005 opinion by Moore in Saben, Earlix & Associates v. Fillet, 134 Cal.App.4th 1024, summarized the varying responses by courts of appeal to purported appeals from orders granting summary judgment:

“Despite the plain rule that an order granting summary judgment is not appealable, however, we recognize that there are instances in which courts have held otherwise. For example, some courts have chosen to treat an appeal from an order granting summary judgment as an appeal from a subsequently entered judgment, or even to deem the order itself to be a judgment, in order to save the faulty appeal….In other instances, courts have chosen to treat a notice of appeal from an order granting summary judgment as a writ petition instead, in order to clear the jurisdictional hurdle and hear a case pending before it….On the other hand, some courts have announced to the bar that they will no longer save appeals from nonappealable orders, such as orders granting summary judgment.”

Neither Hennes nor Stone could be reached for comment.


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