Ericksen Arbuthnot partner Charles S. Painter recently prevailed in an appeal challenging the dismissal of plaintiff’s case for discovery abuses.

The Plaintiff in the case operates a trucking company. Plaintiff sued his insurance agent and his insurance company, alleging the insurance agent was negligent for failing to obtain the proper coverage for plaintiff’s business since the insurance carrier had denied his property damage claim.

Plaintiff failed to serve proper discovery responses, Mr. Painter filed a motion to compel and the trial court granted the motion to compel plaintiff’s discovery responses. When the Plaintiff ignored that discovery order, Mr. Painter filed a motion seeking terminating and monetary sanctions, alleging willful noncompliance with the order compelling discovery. The trial court issued an order granting terminating sanctions. Plaintiff filed a notice of appeal from that order. Later that month, a judgment in favor of defendant was filed.

Mr. Painter’s (Respondent’s)Civil Appeal Mediation Statement pointed out that that the appeal had been taken from a nonappealable order. Appellant’s opening brief in the “Appealability” section, incorrectly asserted that the notice of appeal “was timely filed following the Entry of Judgment in the matter.” The first argument in Mr. Painter’s (Respondent’s) brief sought dismissal of the appeal on the ground that Appellant was attempting to appeal from a nonappealable order. Appellant’s reply brief failed to respond to that argument.

Mr. Painter (Respondent) correctly and repeatedly pointed out that Appellant noticed his appeal from the order granting terminating sanctions, which is a nonappealable order. The appellate court agreed, and stated that it was publishing the decision to demonstrate why an appeal cannot be taken from a nonappealable order. The court decided not to salvage the Appellant’s appeal for three reasons:

1. The Appellant didn’t ask them to do so. Despite notice in the form of Respondent’s civil appeal mediation statement, as well as notice in the form of Respondent’s argument in his appellate briefing that dismissal of Appellant’s appeal is warranted, plaintiff did not ask the court to exercise discretion to save his appeal.


2. Respondent repeatedly raised the issue and Appellant repeatedly ignored it.


3. Appellant misstated the relevant facts in the “Appealability” section of his briefing. That section of the opening brief is required by a rule of court that was adopted expressly to avoid such issues.

Although there are situations where a court may permit a premature appeal from a nonappealable order to be treated as timely filed after the ensuing judgment, there is a limit to a court’s willingness to salvage appeals for parties “who ignore the statutory limitations on appealable orders.” In this case, plaintiff has exceeded that limit. The case was published to illustrate that limit, and also to emphasize that it is imperative to appeal from an appealable order.

Charles Painter is a partner in the Sacramento office. He can be reached at 916.483.5181 orcpainter@ericksenarbuthnot.com.