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Dismissed Appeal

No, Minute Orders Do Not Have to Be Signed to Be Appealable

Tim Kowal     June 29, 2022

I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable.

Liang involved an action to enforce a marital settlement agreement. The trial court awarded the mother $100,000 in fees. But the court made the award in an unsigned minute order, and then later signed a formal order.

The Unsigned Minute Order Was Appealable:

The father contended the minute order was not appealable for two reasons. First, because it was unsigned. Second, because it was followed by a formal signed order.

On both points, father had some authority to back him up.

On the first point, it is easy to find lots of cases that say an unsigned minute order is not appealable. But nearly all of those cases (maybe all of the published ones) deal with unsigned orders of dismissal. And under Code of Civil Procedure section 581d, an order of dismissal must be signed. (E.g., Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.)

Outside of dismissal orders, however, there is no requirement that a minute order be signed to be final and appealable.

And on the second point, it is also true that a minute order is not appealable if it contemplates entry of a formal order. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 458 [“[W]here a formal order is required, a minute order is not appealable.”].) And here, father pointed out that the court did contemplate a formal order.

But not so fast. While the court asked counsel at the hearing to prepare a formal proposed order, the minute order did not indicate any subsequent order was contemplated. And that’s all that matters.

The Appeal from the Denial of Father’s Motion to Vacate Was Timely, But Unfortunately, All the Arguments Were Forfeited:

Luckily for father, he also moved to vacate the minute order. The motion was based on Code of Civil Procedure section 473(b). Father argued he had inadvertently slept through the hearing. The court denied the motion, and the father appealed that order along with the underlying minute order.

The mother moved to dismiss the appeal from the denial of the motion to vacate. The mother argued it raised the same issues as those in the minute order, and as that appeal had to be dismissed, it could not be resurrected by appealing the denial of the motion to vacate.

On this, the mother was only mostly right. What the mother was missing was that the motion to vacate may raise separate issues. And the father could raise those separately in his appeal from the denial of the motion. “[A]n appeal from an order refusing to vacate a judgment will lie when the record available to the appellate court on such appeal raises issues which are not disclosed or could not be disposed of on appeal from the judgment itself. [Citations.]” (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359.)

Unfortunately for father, however, his appellate briefing did not raise any issues that were not disclosed in the underlying minute order awarding fees. So any issues in the motion to vacate that could have been decided on appeal were forfeit. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [issue forfeited by failure to clearly identify in a heading, citing Cal. Rules of Court, rule 8.204(a)(l)(B)]; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument ... allows this court to treat the contention as waived" '].)

Comment: Note that the appellant here was represented by a very experienced certified appellate specialist. The rules of appellate procedure can trip up even the best attorneys. Best not go it alone.

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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