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An amended order suspends the right to appeal from the original order

Tim Kowal     September 11, 2023

When a judge enters an order, and then later modifies the order, you would probably guess that you should appeal from the modified order. And you would be right. But now try this: Voiding the modified order reinstates the original order, and the time to appeal from the original order has expired. What now?

The answer in Sweeney v. Reg'l Water Quality Control Bd. (D1d3 Aug. 31, 2023) No. A166629 (nonpub. opn.) is: Actually, the time to appeal from the earlier order was suspended upon entry of the modified order. In other words, a modified order supersedes the prior order—including the right to appeal from that order.

The plaintiff in Sweeney got hit with a $2.8 million abatement order relating to his wakeboarding and duck-hunting club, which he had operated out of compliance with the Clean Water Act and the Water Code. To enforce payment, the Board asked for an order enjoining Sweeney to assign various assets to the Board. The Board’s proposed judgment failed to include Sweeney’s homestead exemption. The court granted the Board’s motion, but also made clear that the order preserved Sweeney’s homestead exemption.

But two weeks later, the court—mistakenly—signed the Board’s original proposed order, which abrogated the homestead exemption.

By the time Sweeney appealed from both orders, he was beyond the deadline to appeal from the original order.

Everyone agreed that the second order was entered in error. In fact, the trial court withdrew it a few months later, while the appeal was pending.

A modified order suspends the original order, including the right to appeal from the original order.

The Board moved to dismiss Sweeney’s appeal from the original order because the notice of appeal was filed more than 60 days after the file-stamped copy was served.

The Court of Appeal denied the motion. The second order substantially modified the earlier order. And when a trial court substantially modifies a judgment, the modified judgment becomes the appealable judgment. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842-843.)

But what about the fact that the modified order was withdrawn? At that point, there could have been no operative appeal from the original order, because under the modified-order rule just cited, the earlier order was not even an appealable order. Once the modified order was withdrawn, then and only then did the earlier order become appealable again—but Sweeney did not file a notice of appeal.

No matter. Relying on In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 668-669 (Micalizio), the court explained that a modified judgment, even a void one, “superseded the first judgment and remained in effect as the operative judgment, suspending the time to appeal from the first judgment….” (Id. at p. 671.) The appellant in Micalizio had no right to appeal from the original judgment while the amended judgment was in place, and when that judgment was reinstated it became a new judgment for purposes of appeal. "[T]he time for filing a notice of appeal from that judgment began from the date the second judgment was declared void in the trial court." (Id. at p. 672.)

At most, the court concluded, Sweeney’s appeal from the first order was premature, not untimely. The court exercised its discretion to save the premature appeal.

But Justice Rodriguez, concurring, would have dismissed the appeal under the disentitlement doctrine.

Sweeney faced more than technical issues with his appeal. He also refused to pay the abatement order, and also refused to show up for judgment-debtor examinations, refused to comply with subpoenas, and meanwhile gifted what money he had to pay for attorneys’ fees and sold a boat to his father-in-law. This led the trial court to impose monetary sanctions, find Sweeney in contempt on more than one occasion, and issue several bench warrants for his arrest.

Justice Rodriguez writes: “Nevertheless—seemingly unbowed and undeterred—Sweeney's refusal to comply with court orders apparently continues.”

The majority had recognized all this, but declined to dismiss under the disentitlement doctrine because, it noted, “Sweeney has made recent efforts to comply with trial court orders.” Justice Rodriguez was not impressed: “even if he could demonstrate some compliance, I would apply the doctrine and dismiss. I do not believe "seeing the light" at the eleventh hour or halting and occasional compliance at a time of a party's choosing precludes appellate disentitlement.” Justice Rodriguez concludes: “this is the hopefully rare case where a party's persistent and willful disobedience and obstructive conduct warrants appellate disentitlement.”

Comment and Caution

The modified-judgment rule that suspends the appealability of the original judgment order has an exception, and that is for JNOVs and new-trial orders. When a judgment is entered on a verdict, but then the trial court enters JNOV or an order granting a new trial, that JNOV or new-trial order is the appealable order. But the modified-judgment rule does not apply here—the right to appeal from the original judgment is not suspended. Instead, if you are the party aggrieved by the original judgment, you have to take a timely cross-appeal. If the Court of Appeal reversed the JNOV or new-trial order and reinstates the judgment, you will have forfeited your right to appeal if you did not take a cross-appeal.

When multiple judgments or appealable orders are involved, that is a good time to consult an appellate specialist.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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