Kowal Law Group Logo

Premature Appeal May Be Saved, But Get the Judgment Entered

Tim Kowal     February 24, 2022

Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).

That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.

The appellant in Ortiz was unhappy with an arbitration award. The appellant moved the trial court to vacate the award, which was heard at the same time as the prevailing party’s petition to confirm the award. The appellant lost, with the court confirming the award. But the court did not actually enter a judgment on the award.

The appellant appealed the order confirming the award.

An Order Confirming an Arbitration Award Is Not Appealable (Appeal Must Await a Judgment):

“An aggrieved party may appeal from an order dismissing a petition to confirm, correct or vacate an award. [Citation.] No appeal, however, will lie from an order denying vacation or correction of an arbitration award. [Citations.] Such an order may be reviewed upon an appeal from the judgment of confirmation.” (Mid-Wilshire Assoc. v. O’Leary (1992) 7 Cal.App.4th 1450, 1453-1454, original italics.) Likewise, “[a]n appeal lies only from the judgment entered on an order confirming an arbitration award, not from the order.” (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326, original italics.)

“In this case, there is no judgment confirming the award. Accordingly, the appeal from the order ... denying the motion to vacate ... the award must be dismissed.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)

The Court of Appeal May Save a Premature Appeal as Taken from the Subsequent Judgment — But Be Sure There Is Actually a Subsequent Judgment:

The appellant urged the Court of Appeal to save the appeal by deeming it to have been taken from a judgment. The appellant argued that is what happened in Cooper.

But the court distinguished Cooper. There, a judgment actually had been entered after the appeal was filed. The court noted: “Indeed, Cooper cited California Rules of Court, rule 8.104(d), which states, under a heading entitled “Premature notice of appeal,” that “[a] notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment ” and that “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Italics added.)”

Here, there had been no judgment. So the court declined to save the premature appeal.

A Reminder That Courts Take a Dim View Toward Treating Appeals as Writ Petitions:

The court also declined to treat the appeal as a writ petition. In contrast to the liberal approach the courts sometimes take in treating appeals as writs, the court here expressed a dim view of that practice, quoting Mid-Wilshire, supra, 7 Cal.App.4th at pages 1455-1456:

“If we were to do otherwise, we would ignore the mandate of our Supreme Court to reserve the exercise of that discretionary power for cases involving compelling evidence of ‘unusual circumstances.’ [Citation.] Strong policy reasons underpin the one final judgment rule, and the guidelines for ‘saving’ appeals from nonappealable orders. The interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders. To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice.”


While the outcome is not surprising, the strident tone is a little surprising. Courts often rather cavalierly forgive litigants for taking premature appeals. In episode 2 of the California Appellate Law Podcast, we discussed some of the cases that exercised jurisdiction over premature appeals. Courts have deemed orders granting summary judgment to be judgments. (See Lowery v. Kindred Healthcare Operating (2020) 49 Cal.App.5th 119, 121 n.1 [where it was not clear judgment had been entered].)

My favorite case in this vein is Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), at *2 n.1. In that case, the Court of Appeal was faced with a premature appeal of an order granting summary judgment. The court there — apparently more motivated to forgive the misstep than was the Ortiz court — ordered the trial court to enter a judgment nunc pro tunc the same date as the summary judgment order. Without awaiting the actual nunc pro tunc judgment, the court, quite satisfied, went on to construe the notice of appeal as referencing that as-yet-nonexistent judgment.

Be cautious in determining when to appeal. But if you spot a defect, be prepared to explain to the court the many tools it has in its toolkit to save the appeal.

Another Tip: Once you spot that you have a premature appeal, be prepared to go back to the trial judge and ask that a judgment be entered immediately so that your appeal can proceed. On request via email, I am happy to send you a template motion to enter judgment.

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

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

— H.L. Mencken

"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

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


"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

"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

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"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

"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

"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

"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.)

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram