Motion to Dismiss Appeal Denied? Give It Another Shot in the Merits Briefing

Tim Kowal August 3, 2021

I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief?

The answer is: You may re-argue your motion to dismiss in your respondent's brief. And, as was the case in Casey v. Sacramento Public Law Library (D3 Jul. 12, 2021) no. C089936 (nonpub. opn.), the court may re-deny your motion.

In Casey, the library barred the plaintiff from using the self-help center. (Sounds like a story there, but the reader is not let in on it.) The plaintiff sued. Mysteriously, a voluntary dismissal is filed, and the complaint is dismissed. The plaintiff appealed from the dismissal.

Too late, the respondent library argued. The appeal was not filed until more than 180 days after the voluntary dismissal, beyond the outer limit under California Rules of Court rule 8.108. The respondent moved to dismiss, but the Court of Appeal summarily denied that motion.

So the respondent tried again in its respondent's brief. The court said this was permissible:

"Before the record was filed, defendants moved to dismiss the appeal as untimely, and plaintiff opposed the motion. Although we denied the motion, our order does not preclude a later assertion of the issue. (Chernett v. Jacques (1988) 202 Cal.App.3d 69, 71 [initial denial of motion to dismiss “does not evidence this court was able to consider and decide the merits of the dismissability issue in the context of an adequate record and full briefing of the issue”].)"

So this time, the Court of Appeal explained its rationale. But it still refused to dismiss:

"A voluntary dismissal under [Code of Civil Procedure section] 581, subdivision (b)(1) by written request to the clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the dismissal. [Citation.] A voluntary dismissal is a ministerial act, not a judicial act, and not appealable. [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1358, 1364-1365; see also Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974-975.)"

Thus, even if the plaintiff-appellant had filed the request for dismissal, he would not have been required to file an appeal within 180 days from that date.

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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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

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—T.H. White, The Once and Future King

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

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Motion to Dismiss Appeal Denied? Give It Another Shot in the Merits Briefing

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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"A judge is a law student who grades his own papers." — H.L. Mencken

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons