Stanford Law School - Robert Crown Law Library

Filed 2/3/05

IN THE SUPREME COURT OF CALIFORNIA

RENEE WALKER,
Plaintiff and Appellant,
S123853
v.
Ct.App. 2/3 B156420
LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION ) Los Angeles County
AUTHORITY,
) Super. Ct. No. BC199069
Defendant and Respondent.

An order denying a motion for new trial is nonappealable. (Rodriguez v.
Barnett (1959) 52 Cal.2d 154, 156 (Rodriguez).) Such an order, however, may be
reviewed on appeal from the underlying judgment. (Code of Civ. Proc., § 906;
Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608.) In this case, we must decide what
should be done when a party’s notice of appeal states only that the appeal is from
the order denying a new trial. Should the Court of Appeal summarily dismiss the
appeal as being from a nonappealable order? Or should the Court of Appeal
construe the notice to encompass the underlying appealable judgment? We
conclude that where “ ‘it is reasonably clear what appellant was trying to appeal
from’ ” and “no prejudice would accrue to the respondent” (Vibert v. Berger
(1966) 64 Cal.2d 65, 68), the Court of Appeal should treat the notice as an appeal
from the underlying judgment. We therefore reverse the Court of Appeal, which
had dismissed the appeal without considering whether the notice satisfied this test.
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BACKGROUND
In October 1997, defendant Los Angeles County Metropolitan
Transportation Authority (MTA) terminated plaintiff Renee Walker, who had
worked at the MTA as a secretary and administrative assistant. Walker claimed
the termination was in retaliation for her cooperation with an investigation
conducted by the Office of Inspector General. On January 12, 1999, Walker filed
a first amended complaint against the MTA, alleging causes of action for wrongful
termination in violation of public policy and a violation of Labor Code section
1102.5, the whistleblower statute.
The case was tried to a jury and, on October 26, 2001, the jury returned a
defense verdict. Judgment and the notice of entry of judgment were filed on
November 13, 2001.
On December 7, 2001, Walker filed a motion for new trial, asserting claims
of jury misconduct, insufficient evidence, and legal and instructional error.
Walker also filed a motion for judgment notwithstanding the verdict. On
January 3, 2002, the trial court denied both motions.
On February 4, 2002, Walker filed a notice of appeal. The notice stated:
“Plaintiff, RENEE WALKER, appeals from the following order made in the
above-entitled action: [¶] 1) The order denying plaintiff’s Motion for a New
Trial, which Motion was heard on January 3, 2002, and which ruling was set forth
in a Notice of Ruling, dated January 4, 2002.” The MTA did not file a motion to
dismiss the appeal, but instead raised the issue concerning the viability of the
notice of appeal as one of several arguments in its opening brief. The Court of
Appeal, in a published opinion, dismissed the appeal on the ground that the denial
of a new trial is not an appealable order. The Court of Appeal declined to follow
Shonkoff v. Dant Inv. Co. (1968) 258 Cal.App.2d 101, 102, which had treated a
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notice of appeal from an order denying a new trial as an appeal from the
underlying appealable judgment.
We granted review to resolve the conflict.
DISCUSSION
“Generally, no order or judgment in a civil action is appealable unless it is
embraced within the list of appealable orders provided by statute.” (Lund v.
Superior Court (1964) 61 Cal.2d 698, 709.) With certain exceptions not pertinent
here, appealable judgments and orders are listed in Code of Civil Procedure
section 904.1. (Rao v. Campo (1991) 233 Cal.App.3d 1557, 1564.) Section 904.1,
subdivision (a)(4) makes appealable an order granting a new trial, but it has long
been settled that an order denying a motion for new trial is not independently
appealable and may be reviewed only on appeal from the underlying judgment.
(Hamasaki v. Flotho, supra, 39 Cal.2d at p. 608.) Walker thus plainly erred in
seeking to appeal from the January 3, 2002, order denying a new trial rather than
from the November 13, 2001, judgment in favor of defendant.
The consequence of that error is an issue that has divided the Courts of
Appeal. Where, as here, the sole notice of appeal is from the order denying a new
trial, most courts have allowed the appeal to go forward by construing the notice
to encompass the underlying judgment. (E.g., Zavala v. Arce (1997) 58
Cal.App.4th 915, 924-925; Tillery v. Richland (1984) 158 Cal.App.3d 957, 962;
LaCount v. Hensel Phelps Constr. Co. (1978) 79 Cal.App.3d 754, 761-762, fn. 3;
Libby v. Conway (1961) 192 Cal.App.2d 865, 867-868; Shonkoff v. Dant
Investment Co., supra, 258 Cal.App.2d at p. 102.) The Court of Appeal below,
however, concluded that it lacked the power to construe the notice of appeal to
encompass the judgment. Indeed, in dismissing this appeal, the Court said it was
“[a]dhering” to our “binding decision” in Rodriguez, supra, 52 Cal.2d 154.
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It is true that Rodriguez dismissed an appeal from an order denying a new
trial (Rodriguez, supra, 52 Cal.2d at p. 156), in accordance with our long-standing
practice. (E.g., City of Los Angeles v. Glassell (1928) 203 Cal. 44, 46.) And it is
also true that Rodriguez included “an admonition from the Chief Justice to counsel
and to members of the bar generally to cease appealing from such an obviously
nonappealable order.” (Rodriguez, supra, 52 Cal.2d at p. 156.) But neither
Rodriguez nor our other cases had the effect of closing the doors to the party’s
appeal since, in each case, the appealing party had filed both a notice of appeal
from the order denying a new trial and a timely notice of appeal from the
underlying judgment. “When a party appeals from both appealable and
nonappealable orders, courts in this state regularly dismiss the appeal from the
latter order.” (Martin v. Johnson (1979) 88 Cal.App.3d 595, 608.) Thus, even
though purported appeals from an order denying a new trial have been dismissed,
we have nonetheless proceeded in each instance to consider the appeal based on
the other, properly filed notice of appeal from the judgment. (Rodriguez, supra,
52 Cal.2d at p. 156; City of Los Angeles v. Glassell, supra, 203 Cal. at p. 46;
Roberts v. Colyear (1919) 179 Cal. 669, 670; see also Bresnahan v. Chrysler
Corp. (1998) 65 Cal.App.4th 1149, 1151, fn. 1; Jones v. Sieve (1988) 203
Cal.App.3d 359, 363, fn. 2; Fogo v. Cutter Laboratories, Inc. (1977) 68
Cal.App.3d 744, 748-749.)
In this case, only one notice of appeal was filed, and dismissal would have
the effect of completely denying Walker an appeal. These circumstances recall
Vibert v. Berger, supra, 64 Cal.2d 65, in which the plaintiff filed a timely notice of
appeal from the trial court’s order sustaining a demurrer without leave to amend.
As with an order denying a new trial, it is “ ‘hornbook law that [an] order
sustaining a demurrer is interlocutory, is not appealable,” but, as with an order
denying a new trial, is reviewable on appeal from the judgment. (Id. at p. 67.)
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Rather than dismiss the appeal, though, Vibert sought to harmonize the hornbook
law and former rule 1 of the California Rules of Court “that ‘A notice of appeal
shall be liberally construed in favor of its sufficiency.’ ” (Vibert, supra, 64 Cal.2d
at p. 67.) Under that rule, “the notice can be interpreted to apply to an existing
appealable order or judgment, if no prejudice would accrue to the respondent.
Thus, notices of appeal referring to an ‘order’ have been interpreted to apply to a
‘judgment,’ and those referring to a ‘judgment’ to apply to an ‘order,’ ‘so as to
protect the right of appeal if it is reasonably clear what appellant was trying to
appeal from, and where the respondent could not possibly have been misled or
prejudiced.’ ” (Id. at pp. 67-68, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59-60.)
We find Vibert instructive here. Although the California Rules of Court
have since been amended, current rule 1(a)(2)—“The notice of appeal must be
liberally construed”—restates the substance of former rule 1. Moreover, Walker
has presented a colorable argument that she intended to appeal from the
underlying judgment and that the MTA, which filed a respondent’s brief on the
merits in the Court of Appeal as well as a counter-designation of the record on
appeal, would not be prejudiced by allowing the appeal to go forward. The Court
of Appeal therefore erred in dismissing the appeal without considering whether, on
these facts, the notice might be construed to encompass the underlying judgment.
Contrary to the MTA’s contention, construing a notice of appeal to
encompass the underlying judgment does not “violate” the appellate jurisdiction
clause, article VI, section 11 of the California Constitution. Although a reviewing
court lacks jurisdiction on direct appeal in the absence of an appealable order or
judgment (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696), the
basis for jurisdiction was established here by the appealable judgment entered on
November 13, 2001. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“The
existence of an appealable judgment is a jurisdictional prerequisite to an appeal”].)
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That judgment also distinguishes this case from those on which the MTA relies, in
which a party attempted to appeal from other types of nonappealable orders when
no appealable judgment or order had been entered. (E.g., Hill v. City of Long
Beach (1995) 33 Cal.App.4th 1684, 1695-1696 [citing cases]; Shpiller v. Harry
C’s Redlands (1993) 13 Cal.App.4th 1177, 1179-1180; Munoz v. Florentine
Gardens (1991) 235 Cal.App.3d 1730, 1731-1732.) None of the foregoing cases
suggested that a reviewing court lacked discretion to construe a notice of appeal
from an order denying a new trial to encompass the existing judgment. (Cf.
Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669 [“Vibert is
simply one example of the application of the general and well-established rule that
a notice of appeal which specifies a nonappealable order but is timely with respect
to an existing appealable order or judgment will be construed to apply to the latter
judgment or order”].)
We also reject the MTA’s suggestion that granting appellate courts
discretion in this area will undermine the “one final judgment” rule, a fundamental
principle of appellate practice that prohibits review of intermediate rulings by
appeal until final resolution of the case. (Griset v. Fair Political Practices Com.,
supra, 25 Cal.4th at p. 697.) The theory underlying the rule “ ‘is that piecemeal
disposition and multiple appeals in a single action would be oppressive and costly,
and that a review of intermediate rulings should await the final disposition of the
case.’ ” (Ibid.) The rule is not endangered here, though, since construing a notice
of appeal from an order denying a new trial to be an appeal from the one final
judgment risks neither piecemeal disposition nor multiple appeals.
The MTA’s claim that construing the notice of appeal to apply to the
underlying judgment “would needlessly cause uncertainty” in our state appellate
courts cannot withstand scrutiny. As the Court of Appeal acknowledged,
California attorney practice guides already advise that “appellate courts have
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discretion to ‘save’ an appeal erroneously taken from an order denying a new trial
(rather than from the underlying judgment) by construing it as an appeal from the
judgment.” (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2003) ¶ 2:143; see also id., ¶ 2:264.) Witkin, too, states that “[a]n
order denying a new trial is nonappealable [citation], but a notice specifying the
order may be deemed to constitute an appeal from the judgment.” (9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 463, p. 513.) Moreover, the federal courts,
which similarly are required to liberally construe a notice of appeal (Smith v.
Barry (1992) 502 U.S. 244, 248), treat a notice of appeal from an order denying a
new trial as being an appeal from the underlying judgment. (11 Wright et al.,
Federal Practice & Procedure: Civil (2d ed. 1995) § 2818, pp. 192-193 & fn. 11.)
Our sister jurisdictions follow the same practice. (E.g., Carpenter v. Hannan
(La.Ct.App. 2002) 818 So.2d 226, 228-229; Forte v. Muzi Motors, Inc.
(Mass.App.Ct. 1977) 369 N.E.2d 1030, 1031-1032, fn. 4.) Our decision thus does
no more than ratify existing practice here and elsewhere.
Because “[t]he law aspires to respect substance over formalism and
nomenclature” (City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1,
11), a reviewing court should construe a notice of appeal from an order denying a
new trial to be an appeal from the underlying judgment when it is reasonably clear
the appellant intended to appeal from the judgment and the respondent would not
be misled or prejudiced.1 Whether that is true of Walker’s notice of appeal shall
be for the Court of Appeal to decide on remand.

1
We disapprove the following pre-Vibert cases to the extent they are
inconsistent with our opinion: Estate of Roberson (1952) 114 Cal.App.2d 267;
Wilbur v. Cull (1954) 127 Cal.App.2d 655; and Estate of Smith (1959) 175
Cal.App.2d 803.
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DISPOSITION
The judgment of the Court of Appeal is reversed and the cause remanded
for further proceedings consistent with this opinion.
BAXTER, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Walker v. Los Angeles Metropolitan Transportation Authority
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 43
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123853
Date Filed: February 3, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Morris Bruce Jones

__________________________________________________________________________________

Attorneys for Appellant:

Knickerbocker Law Corporation and Richard L. Knickerbocker for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Franscell, Strickland, Roberts & Lawrence, David D. Lawrence, Paul B. Beach and Adrian J. Barrio for
Defendant and Respondent.

Michael M. Berger; Jay-Allen Eisen; Dennis A. Fischer; Robert S. Gerstein; Wendy Lascher; Steven L.
Mayer; Richard Sherman; Snell & Wilmer and Richard A. Derevan for the California Academy of
Appellate Lawyers as Amici Curiae.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard L. Knickerbocker
Knickerbocker Law Corporation
233 Wilshire Boulevard, Suite 400
Los Angeles, CA 90401
(310) 917-1006

Paul B. Beach
Franscell, Strickland, Roberts & Lawrence
100 West Broadway, Suite 1200
Glendale, CA 91210-1219
(818) 545-1925

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Opinion Information

Date:	Docket Number:
Thu, 02/03/2005	S123853

Disposition
Feb 3 2005	Opinion: Reversed

Dockets
Apr 5 2004	Petition for review filed   appellant Renee Walker
Apr 8 2004	Received Court of Appeal record   1 doghouse
Apr 23 2004	Answer to petition for review filed   respondent Lso Angeles County Metropolitan Trans. Authority
May 12 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
May 13 2004	Letter sent to:   all parties enclosing grant order and certificate of interested persons and entitites form.
May 14 2004	2nd record request   for balance of the record
May 18 2004	Received Court of Appeal record
May 21 2004	Certification of interested entities or persons filed   by David D. Lawrence, counsel for respondent (L.A. County Metro Transportation Authority)
May 27 2004	Certification of interested entities or persons filed   Richard Knickerbocker, counsel for appellant WALKER.
Jun 28 2004	Received:   Aplt's (late) brief on the merits, with application for permission.
Jul 2 2004	Order filed   Appellant's application to file a late opening brief on the merits is hereby granted.
Jul 2 2004	Opening brief on the merits filed   by counsel for Appellant Renee Walker
Jul 29 2004	Extension of time granted   Respondent Los Angeles County Metropolitan Transportation Authority for a 30-day extension to and including 9-3-2004 to file the Answer Brief on the Merits.
Sep 2 2004	Request for extension of time filed   counsel for resp LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY request to 9-17-04 to file respondent's answer brief on the merits
Sep 8 2004	Extension of time granted   to Sept. 17, 2004 for respondent to file the answer brief on the merits.. No further extensions of time are contemplated.
Sep 17 2004	Answer brief on the merits filed   respondent Los Angeles County Metropolitan Transportation Authority
Sep 30 2004	Request for extension of time filed   Appellant ( Walker) to file the reply brief on the merits. Asking to Oct. 26, 2004
Oct 7 2004	Extension of time granted   to Oct. 26, 2004 for appellant to file the reply brief on the merits. No further extensions are contemplated.
Oct 26 2004	Request for extension of time filed   for appellant Walker to file the reply brief on the merits, to 10/29.
Nov 1 2004	Reply brief filed (case fully briefed)   Appellant ( Walker).
Nov 30 2004	Received application to file Amicus Curiae Brief   Calif. Academy of Appellate Lawyers (brief under same cover) (non-party)
Dec 6 2004	Permission to file amicus curiae brief granted   by the California Academy of Appellate Lawyers. Answers may be filed w/in 20 days.
Dec 6 2004	Amicus curiae brief filed   by the California Academy of Appellate Lawyers
Dec 8 2004	Case ordered on calendar   1/5/05 @9am - San Francisco
Jan 5 2005	Cause argued and submitted
Jan 10 2005	Received:   Respondent's ( LA County) supplemental letter brief.
Feb 3 2005	Opinion filed: Judgment reversed   and remanded for further proceedings. Opinion by: Baxter, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 7 2005	Remittitur issued (civil case)
Mar 11 2005	Received:   Receipt for remittitur from Second District, Division Three, signed for by Valorie Gray, Deputy Clerk.
Apr 15 2005	Returned record   to Second District, Division Three, Attn: Matsumi Favinski, sent via Supreme Court's L. A. Office. Record has two doghouses
Aug 12 2005	Returned record   2 doghouses [shipped 8-19-05 attn carl]

Briefs
Jul 2 2004	Opening brief on the merits filed
Sep 17 2004	Answer brief on the merits filed
Nov 1 2004	Reply brief filed (case fully briefed)
Dec 6 2004	Amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website