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Court of Appeal Panel Dismisses Appeal From Nonappealable Order in Published Opinion
Justices Say They Want to Provide Guidance to Lawyers, Their Clients, and Judiciary
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal took the unusual course yesterday of certifying for publication an opinion dismissing an appeal from a nonappealable order, saying that it was doing so to provide guidance to trial judges, litigants, and counsel.
The per curiam opinion was signed by Acting Presiding Justice Thomas M. Goethals and Justices Maurice Sanchez and Joanne Motoike. They dumped an appeal filed by plaintiff Bettie Blauser who unsuccessfully sued Irvine personal injury attorney Eric J. Dubin.
She appealed from a Dec. 13, 2023 minute order that recites:
“The Court grants the motion for non-suit as set forth on the record and non-suit is entered as to the First Amended Complaint.”
On Aug. 5, Div. Three’s presiding justice, Kathleen O’Leary, said in an order to the parties:
“It appears that appellant may have appealed from a nonappealable order, i.e., an unsigned minute order granting a motion for nonsuit The court is considering dismissing the appeal as nonappealable if a signed judgment of dismissal is not entered by the court….If a copy of the judgment is filed with this court within 30 days, the appeal may proceed as one taken from the judgment….If a copy of the judgment is not provided, the parties may file letter briefs addressed to whether the appeal should be dismissed within 40 days of this order.
On Sept. 6, a “note” was entered in the Court of Appeal’s docket saying, “No signed judgment has been submitted.”
Blauser’s Argument
Blauser argued in a letter brief, submitted by Newport Beach attorney Janice M. Vinci and filed on Sept. 13:
“Based upon Plaintiff’s prompt due diligence to correct the error immediately upon learning that the Minute Order attached to the Notice of Entry of Judgment was unsigned, this Court should not dismiss Plaintiff’s,” adding:
“There is strength in the fact that the unsigned Minute Order was case ending; hence, a final judgment.”
Then, on Nov. 1, Orange Superior Court Judge Andre De La Cruz added his signature to the Dec. 13, 2023 minute order, below the words, “IT IS SO ORDERED.” The order was filed in the Court of Appeal on Nov. 6.
That wasn’t good enough, the justices said:
“Though now signed, the minute order is (still) not labeled as a ‘judgment’ and it (still) does not purport to enter; judgment.’ ”
Justices’ Counseling
They wrote:
“Dismissing this appeal and requiring a new appeal to be filed once judgment is actually entered is inefficient—at least when this case is considered in isolation. But we publish this case to enhance systemic efficiency. Parties and attorneys should not fear that they are required to appeal immediately from an order granting a motion for nonsuit rather than a subsequent, signed, separately filed document labeled as a judgment or order of dismissal.”
The justices added:
“We urge trial courts that have made dispositive rulings in civil cases (including this particular trial court on remand) to take the time to enter a separate, signed document, clearly labeled as a ‘judgment’ or ‘order of dismissal.’ We likewise urge parties in this situation to submit appropriate proposed judgments and to advocate for entry of a separate appealable judgment rather than allowing uncertainty to fester. Such an unambiguous judgment should not be combined with minutes from an ongoing trial, an order ruling on a motion, or a statement of decision. Such an unambiguous judgment should not include a lengthy recital of the history of the case, preliminary findings already made in a statement of decision, or other extraneous matter. We note there is an optional Judicial Council form. JUD- 100. that could serve as the basis for a judgment in a civil case in the absence of a proposed judgment tailored to the case.”
In dismissing the appeal, the justices noted that it was without prejudice to Blauser filing a new appeal once a judgment is entered.
The case is Blauser v. Dubin, G063715.
$30 Million Verdict
Dubin’s website says:
“Eric first gained national acclaim after winning a 30 million dollar jury verdict in the Wrongful Death/Personal Injury lawsuit against actor Robert Blake.”
Dubin did gain such a 2005 verdict in favor the estate of his late wife, Bonny Lee Bakley. The jury found, by a 10-2 vote, that the actor (now deceased) “intentionally caused the death” of his wife.
He had earlier been acquitted in criminal court of murdering her.
However, Dubin does not mention that the verdict did not stand. On April 25, 2008, Div. Three of this district’s Court of Appeal held:
“[T]he award of $30 million in noneconomic damages is excessive and that a reduction to $15 million is appropriate, if the plaintiff consents to the remittitur. If the plaintiff does not consent, the judgment will be reversed for a new trial on the limited issue of the amount of damages.”
There was no subsequent trial.
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