Such discretion is usually invoked only where the appeal is mistakenly taken from an order preliminary to rendition of a final judgment. Some appeals erroneously taken from a non-appealable order may be “saved” by the court of appeal if the defect is one in formality. “Appealability of the order goes to our jurisdiction, leaving us dutybound to consider it on our own motion.” ( Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) County of Madera (2009) 177 Cal.App.4th 298, 302.) Even if the respondent does not raise the issue, an appeal taken from a non-appealable order should be dismissed. Where an appellate court lacks jurisdiction to entertain an appeal from a non-appealable judgment or order, the appeal must be dismissed on respondent’s motion or the court’s own motion. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 696.) As noted by one court: “question whether an order is appealable goes to the jurisdiction of an appellate court, which is not a matter of shades of grey but rather of black or white.” ( Farwell v. Likewise, appellate courts cannot entertain an appeal taken from a nonappealable judgment or order. If it appears that the appeal is untimely, a motion to dismiss should be immediately sought to prevent unnecessary expense and delay. As a respondent, the first step should be to verify that the notice of appeal was timely. Other times, however, untimeliness of the appeal may not be readily apparent and it is not until briefing that the defect is discovered. Rico (1975) 15 Cal.3d 660, 666-667.) On occasion, an untimely appeal will be accepted for filing and the court of appeal may dismiss sua sponte. Thus, an appeal that was filed too late must be dismissed on respondent’s motion or the court’s own motion. The late filing of the notice of appeal is an absolute bar to appellate court jurisdiction. Such procedural grounds are ripe for a motion to dismiss. The usual suspects: motions to dismiss based on a procedural defectĪ motion to dismiss an appeal is most often successful in those circumstances where the notice of appeal is untimely or where the appeal arises from a non-appealable order. This article explores the power of a motion to dismiss an appeal and the circumstances that warrant its use. In the last few years, appellate courts have granted more and more motions to dismiss anti-SLAPP appeals and have lambasted defense counsel for pursuing such frivolous appeals for the purpose of delay. While not a favored means to dispose of an appeal, appellate courts have recently grown tired of seeing litigants abuse the immediate appealability of certain orders where there is practically no merit to the legal position and the purpose of the appeal appears to be to delay the trial.Īs outlined below, this is particularly true in the context of anti-SLAPP motions where denial of the motion is immediately appealable. Under the right circumstances, a motion to dismiss an appeal can be granted before any briefing has even been filed. While many of these motions and applications are routine and simply serve to set the stage for the big show – consideration of the merits of the appeal as framed by the appellate briefs – some motions can be used as a sword to summarily dispose of the appeal at the outset. Throughout the pendency of an appeal, there may be varying circumstances warranting motions, applications and informal requests filed with the court.
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