Climbing the Mount of Appealability: When is an Appeal not an Appeal?

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  2. Climbing the Mount of Appealability: When is an Appeal not an Appeal?

Based on a true story…

Once upon a time there was a magical place in a mythical county in rural Northern California. Let’s call this magical place, Camelot.

Camelot was the subject of intense interest. Much debt was issued, secured by the lovely Camelot. Eager investors purchased interests in the Debt, hoping to someday gain a piece of Camelot. Eventually the Debt grew so big, it covered the entire expanse of Camelot.

One fellow—we’ll call him Shylock–was particularly charmed by Camelot’s beauty and value and he purchased interest after interest in the Debt, until he owned it all.

Now, two warring gentlemen lived on Camelot. We’ll call them Romeo and Antonio. Romeo and Antonio each owned a 50% undivided interest of the lovely Camelot and 50% of the Debt. Don’t ask how this came about for nobody knows. Perhaps fairies or a wicked witch had something to do with this unfortunate state of affairs.

But, Romeo and Antonio could not agree on who had to pay the Debt. Each tried to gain advantage over the other. So it came to pass that Camelot fell into that dreaded state called Default.

Shylock made a deal with Romeo and they both filed suit against the hapless Antonio. They wanted Camelot to be taken out of the state of Default and put into a State of Partition. Shylock and Romeo asked the judge for an accounting, to order Antonio pay the entire Debt, and to allow them a chance to foreclose on Antonio’s share of Camelot to satisfy the Debt.

After a trial at which the threads of many fantasies were spun into gold, the judge decided in favor of Shylock and Romeo and held Antonio must pay all of the Debt secured by Camelot. The judge, not wanting to poke her nose where it might later get cut off, said nothing about putting Camelot into the State of Partition. Shylock and Romeo announced their intention to use the Judgment to foreclose on Camelot forthwith.

Now Shylock and Antonio, being the winners, were charged with creating a Judgment. They worked and they toiled and they slaved away and finally gave birth to a Judgment. Shylock and Romeo christened it “Judgment for Partition.”

The judge, unfamiliar with the works of William Shakespeare and fairy tales, signed the Judgment for Partition and laid down her quill with a satisfied sigh.

Everyone was well-pleased … except for Antonio.

Antonio fumed and he fretted and he paced and regretted, for several days. Finally, Antonio turned to his friend, Appellate Attorney. Appellate Attorney, being a compassionate soul, took pity on poor Antonio and promised to see what she could do to save his beloved Camelot.

Now Appellate Attorney knew that Antonio must first climb the Mount of Appealability before he could enter the hallowed halls of the Court Of Appeal. Many hopeful supplicants had tried to scale the mountain, only to be thrown down into the Pit of Despair.

Appellate Attorney carefully perused Code of Civil Procedure §904.1, which defines appealable judgments. She read Code of Civil Procedure §872.720, which expressly made a Judgment of Partition appealable, where it orders partition.

Now a dense fog obscured the peak of the Mount of Appealability, for the Judgment for Partition did not order Camelot into a State of Partition.

Appellate Attorney consulted oracles and sages, but none knew whether the Judgment Of Partition was appealable. Alas, no court in the land had published a word to dispel the fog.

Finally, Appellate Attorney threw up her hands in despair. “I cannot decipher whether Judgment for Partition is an appealable judgment.” Antonio would have to take his chances.

So Appellate Attorney filed Antonio’s Notice of Appeal, hoping they would reach their destination in safety.

They awaited their fate.

Finally, a Man on Horseback appeared. “I come from the Court Of Appeal,” he announced. “They want Antonio to know they have received his appeal. But they are in a State of Indecision. Is the Judgment for Partition appealable or not?”

Appellate Attorney fell to her knees. “Please, kind sir,” she wailed. “Please, tell them I have studied and I have consulted with others, but no one knows the answer!”

The Man on Horseback looked kindly at the despairing Appellate Attorney. “Then,” he said, “you must give them further briefing.”

Appellate Attorney grasped the Sword of Justice that hung at her side. She rose to her feet and wiped her tears away.

“I shall do so,” she said. “For the sake of Camelot and Antonio, I will reach the top of the Mount of Appealability.”

“Do as you will,” said the Man on Horseback. “I must be off to deliver the news to Romeo and Shylock.” He tipped his hat and galloped away.

So Appellate Attorney went back to her quill and her parchment and wrote to the Court Of Appeal. She worked all through the night, until the cock crowed and the sun rose.

She started with the rule that where a judgment effectively disposes of all of the interests between the parties on appeal, it is final and therefore appealable. (See, e.g., Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430; Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 303; Eisenberg, California Practice Guide, Civil Appeals & Writs, §2.38.) She argued that Romeo and Shylock made an election of remedies by explicitly waiving the remedy of partition, so that the Judgment of Partition disposed of all of the parties’ interests and was therefore a Final Judgment. (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039; California Golf, LLC v. Cooper (2008) 163 Cal.App.4th 1053, 1065.)

Finally, she threw Antonio on the Court’s mercy, arguing that in extraordinary circumstances, the esteemed Court Of Appeal may take pity on poor Antonio and treat his appeal as a Petition for a Writ. (In re MR (2013) 220 Cal.App.4th 49, 65; H.D. Arnaiz, Ltd., v. County of San Joaquin (2003) 96 Cal.App.4th 1357, 1366-67.) She argued that Antonio’s potential loss of title to Camelot due to foreclosure to satisfy a debt improperly allocated to Antonio constituted extraordinary circumstances.

In the morning, Appellate Attorney sent off her brief with a kiss and a prayer.

Again, Antonio and Appellate Attorney awaited their fate.

Spring turned into Summer.

Soon word came from a member of Appellate Attorney’s network that the Court Of Appeal had decided a case very similar to Antonio’s, Summer v. Superior Court (2018) 24 Cal.App.5th 138. Taking advantage of California Rules of Court, Rule 8.254, which allowed Appellate Attorney to submit supplemental briefing regarding new authority that was not available at the time her brief was filed, Appellate Attorney wrote again to the Court Of Appeal.

The Man on Horseback returned. Wordlessly, he handed Appellate Attorney a large scroll of parchment tied with a red ribbon and galloped away.

Appellate Attorney ran to Antonio and together they unrolled the parchment. Antonio could not read, so Appellate Attorney read it to him.

Happily for Antonio, the Court of Appeal decided that, while the Judgment of Partition was not an appealable judgment because it did not order Camelot to be put into the State of Partition, it would have mercy on Antonio and treat his appeal as a writ petition.

Appellate Attorney and Antonio jumped for joy upon learning that they had scaled not the Mount of Appealability, but the even more treacherous Moat of Writ Petitions.

But more happiness awaited Antonio. The Court Of Appeal told him he was not required to pay all of the Debt on his beloved Camelot because the law required Romeo and Antonio to each pay his own half of the Debt.

In his joy, Antonio paid Appellate Attorney her modest fee and departed for home. On his way, he encountered a small creek with a footbridge controlled by an angry troll. In addition to being angry, the troll was very stupid. Perhaps that is why he was angry.

“I will let you cross the bridge if you ask me a riddle I cannot solve,” demanded the troll. Antonio saw the creek was very shallow and he could just wade across. He also saw the troll was carrying a bag full of silver on his belt.

“I will ask you a riddle, but if you cannot solve it, you not only must allow me to cross, you must also pay me 10 pieces of silver.” Being stupid, the troll agreed.

Antonio thought for a moment. Finally, he said, “I imagine you have heard that lawyers never lose their appeal?”

The troll nodded. “I have.”

“When does an attorney lose her appeal and yet win her appeal?” asked Antonio.

Knowing nothing of appellate procedure, the troll could not answer.

“When its a writ!” declared Antonio.

Taking advantage of the troll’s confusion, Antonio grabbed the bag of silver—which was now rightfully his after all—and ran over the bridge.

Antonio returned home, paid his part of the Debt on Camelot and lived there happily ever after.

The end.

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