Distinguishing judgments and orders

In civil cases, the distinction between an order and a judgment may have several consequences on the litigation.

The objective of this article and accompanying self-study test is to educate the bench and bar about judgments and orders in civil cases. Readers will learn about the distinction and consequences between an order and a judgment, including dismissal and summary judgment orders, demurrers, voluntary dismissals, and the form of the judgment.

Judgments Versus Orders: Why We Care

Whether something is an order or a judgment is important because it affects the right to appeal. Code of Civil Procedure Section 904.1 sets forth a list of appealable judgments and orders. (CCP Section 904.2 contains a similar list for appeals from judgment in limited civil cases.) Section 904.1 is a codification of the "one final judgment rule," and lists the exceptions to the rule. Morehart v. County of Santa Barbara, 7 Cal. 4th 725 (1994).

Included in the Section 904.1 list of exceptions to the one final judgment rule are: (1) an interlocutory judgment for sanctions in an amount exceeding $5,000; (2) an order for sanctions in an amount exceeding $5,000; and (3) an order granting or denying a special motion to strike under Section 425.16. See CCP Section 904.1(a)(11)-(13). The list includes approximately 13 types of orders and judgments that may be directly appealed, and provides that only the enumerated interlocutory judgments may be directly appealed, thus excluding any interlocutory judgments that are not on the list. CCP Section 904.1(a)(1). An interlocutory judgment is one that "disposes of fewer than all of the causes of action framed by the pleadings," such that a cause of action is still pending between the parties despite the judgment. Morehart at 741.

The plain language of Section 904.1 does not include an award of costs or attorney fees among the exceptions to the one final judgment rule. However, one exception is the so-called "collateral order doctrine." "Where the trial court's ruling on a collateral issue 'is substantially the same as a final judgment in an independent proceeding' in that it leaves the court no further action to take on 'a matter which ... is severable from the general subject of the litigation', an appeal will lie from that collateral order even though other matters in the case remain to be determined. ... [¶] In determining whether an order is collateral, the test is whether an order is 'important and essential to the correct determination of the main issue.' If the order is 'a necessary step to that end,' it is not collateral." Lester v. Lennane, 84 Cal. App. 4th 536 (2000) (internal citations omitted). An order taxing costs or awarding attorney fees meets the collateral order exception and is directly appealable. City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012).

In contrast, a verdict is not appealable. Walter v. Ayvazian, 134 Cal. App. 360 (1933). It is equally well established that an order denying a motion for a new trial is not independently appealable, it may be reviewed only on appeal from the underlying judgment. Walker v. Los Angeles County Metropolitan Transportation Authority, 35 Cal. 4th 15 (2005).

The distinction between orders and judgments is also important because a trial court loses jurisdiction to grant a motion for reconsideration of an order deemed to be a judgment. If a judge has entered a judgment, or the order is deemed a judgment, the judge may not grant a motion for reconsideration under CCP Section 1008. APRI Ins. Co. S.A. v. Superior Court, 76 Cal. App. 4th 176 (1999) (because trial court signed an order granting the motion to quash and dismissing APRI from the action before it granted the motion for reconsideration, it had no authority to grant the motion for reconsideration). Why? Until entry of judgment, the court retains complete power to change its decision; it may change its conclusions of law or findings of fact. "After judgment a trial court cannot correct judicial error except in accordance with statutory proceedings. A motion for reconsideration is not such a motion." Ramon v. Aero. Corp., 50 Cal. App. 4th 1233 (1996) (internal citations omitted).

Also, a judgment triggers deadlines for seeking costs and attorney fees. Whether a litigant can recover costs and attorney fees may depend on whether a judgment has been entered. For example, to recover costs, a prevailing party must file and serve the memorandum of costs within the earlier of: (1) 15 days after the clerk's mailing of notice of entry of judgment or dismissal; or (2) 15 days after any party's service of such notice; or (3) 180 days after entry of judgment. California Rule of Court 3.1700(a)(1).

Dismissals

CCP Section 581d orders of dismissal constitute judgments only if signed. CCP Section 581d states: "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case." (Emphasis added). An order that is not signed by the trial court does not qualify as a judgment of dismissal under Section 581d. Daniels v. Robbins, 182 Cal. App. 4th 204 (2010); see also Powell v. County of Orange, 197 Cal. App. 4th 1573 (2011) ("The lack of a written order of dismissal signed by the trial court has two consequences. First, the set aside motion was premature as there is no judgment yet to set aside. Second, in this matter, there is no final judgment that might serve as a basis for appellate jurisdiction"). Section 581d "gives orders of dismissal equality with other judgments but no greater impact." Mattern v. Carberry, 186 Cal. App. 2d 570 (1960).

Does a minute order indicating that the action has been dismissed with the judge's

signature constitute a judgment? In Brehm v. 21st Century Ins. Co., 166 Cal. App. 4th 1225 (2008), Justice Dennis Perluss concluded this practice "arguably complies with the literal requirements of section 581d" but "does little to further the rationale for requiring final orders of dismissal to be accomplished by written, signed court order rather than by minute order." He cautioned, "We encourage trial courts to avoid this issue in the future by using a separate written order of dismissal, signed by the court and filed in the action, to conclude a case, rather than relying on a signed or stamped minute order."

Summary Judgments

An order granting summary judgment is not a "judgment" for purposes of appeal. Davis v. Superior Court, 196 Cal. App. 4th 669 (2011). CCP Section 437c(m)(1) states a summary judgment is appealable. "However, that subdivision also provides that an order entered under section 437c, other than a summary judgment, may be reviewed by writ petition. ... In other words, a summary judgment is appealable, but an order granting summary judgment is not." Saben, Earlix & Associates v. Fillet, 134 Cal. App. 4th 1024 (2005).

In Davis, the trial court granted a motion for summary judgment filed by the defendant. The trial court's written ruling was titled "Order Granting Summary Judgment." The order closed with a single, underlined sentence on its third page stating: "Judgment is therefore entered in favor of Defendant and against Plaintiff on all causes of action in the complaint." A year later, the plaintiff moved for entry of judgment. The trial court denied the motion because it had previously entered the order granting summary judgment which contained the language "Judgment is therefore entered." The appellate court granted a petition for writ of mandate directing the trial court to enter a judgment so that the plaintiff may file an appeal. The appellate court concluded that denying the plaintiff his appellate rights required more than an "order" (the trial court's own title for its ruling) "dressed-up to masquerade as a 'judgment.'" Davis, 196 Cal. App. 4th at 674.

Demurrers

An order sustaining a demurrer without leave to amend as to all causes of action is not a final judgment; a judgment of dismissal is still needed. Donald v. CafÃ(C) Royale, 218 Cal. App. 3d 168 (1990). Why? The trial court may reconsider its ruling after such an order but before judgment and come to a different conclusion. Bank of America v. Superior Court, 20 Cal. 2d 697 (1942). Ordinarily, in the absence of a request for reconsideration, after a demurrer is sustained without leave to amend, no formal motion to dismiss the action is necessary. The entry of a judgment of dismissal follows as a matter of course. But it is only by the entry of the judgment that a party is in a position to test the correctness of the court's ruling since there is no appeal from a ruling on a demurrer but only from the ensuing judgment. Michaels v. Mulholland, 115 Cal. App. 2d 563 (1953). At a minimum, as discussed in Brehm, a judge should sign a minute order sustaining the demurrer without leave to amend and state that under CCP Section 581(f)(1), "the case is hereby ordered dismissed."

When a demurrer to the entire complaint has been sustained with leave to amend, and the plaintiff fails to amend within the time allowed by the court, a judge may dismiss the complaint on the motion of either party. CCP Section 581(f)(2). A motion to dismiss the entire action and for entry of judgment after the time to amend has expired may be made by ex parte application. CRC 3.1320(h).

Voluntary Dismissals

Notice of the voluntary dismissal by a party is considered a "judgment" for purposes of triggering the time limits for seeking costs and attorney fees. If a plaintiff files a voluntary dismissal, a defendant is not required to file a proposed judgment before it may recover costs. Fries v. Rite Aid Corp., 173 Cal. App. 4th 182 (2009). Under CRC 3.1390, following entry of dismissal, plaintiff is required to serve notice on all parties to the action. Note that under Civil Code Section 1717(a)(2), there is no prevailing party for purposes of awarding attorney fees if the action is voluntarily dismissed. This is based on public policy to encourage plaintiffs to discontinue nonmeritorious litigation rather than continue in an effort to avoid a fee award.

The Form of the Judgment

A judgment is the final determination of the rights of the parties in an action or proceeding. CCP Section 577. It terminates the litigation between the parties and leaves no issue for further consideration by the court other than enforcement or compliance, or costs or fees. A judgment that resolves all of the plaintiff's claims against particular defendants is final with respect to these claims even though the plaintiff's action is still pending against other defendants. Nguyen v. Calhoun, 105 Cal. App. 4th 428 (2003). As for lawsuits with cross-complaints, although a complaint and a cross-complaint are treated as independent actions for most purposes, when the parties to the complaint and cross-complaint are identical, there is no final, appealable judgment until both have been resolved. Westamerica Bank v. MBG Indus. Inc., 158 Cal. App. 4th 109 (2007).

A judgment is tested by the sufficiency of its substance, not its form. The form is not prescribed by statute or the California Rules of Court. Here are some tips: A judgment should clearly show the full names of the parties for whom and against whom the judgment is rendered and their capacities as plaintiffs, defendants, cross-complaints, or cross-defendants, because the judgment may be rendered for or against several parties and may determine the rights of those parties; a judgment must be sufficiently clear and definite to enable the parties to comply with its requirements (e.g., a judgment that adjudicates title to real property must be as clear and explicit as a deed that conveys real property); a judgment must show the amount due to the plaintiff from the defendant or that the plaintiff takes nothing; a judgment should indicate which party is entitled to recover costs of suit (it is okay to leave that amount blank to be entered afterwards based on the party's memorandum of costs or after ruling on a motion to strike or tax costs); and finally, a judgment should include any prejudgment interest.