Tim Kowal: Welcome to the California Appellate Law Podcast. This is Tim Kowal. Today on the podcast, we're going to be talking about a recent California Supreme Court case, Maniago v. Desert Cardiology Consultants. And I have the appellant in that case, John "Mitch" Mitchell, to discuss that case today. So thank you so much, Mitch, for joining us.

Mitch Mitchell: Tim, it's my pleasure. Good to see you.

Tim Kowal: I wanted to set up the case a little bit first. I'll start with the bottom line, the takeaway for our trial attorneys and appellate attorneys, because this case really presents a trap — it was a trap for the unwary before you came into the case, Mitch, and you were aware of it. That trap was originally presented in Kurwa v. Kislinger. What this case involves is when you don't have an appealable order, but you do have a devastating, case-ending order, and you want to get to the appeal — but you have to check the right boxes and follow the right steps to get there. How do you get there? What this case teaches is that you cannot get there through a voluntary dismissal form. And whether it's a voluntary dismissal with prejudice or without prejudice doesn't matter — that's basically the upshot of this case.

Before this case, the operative case was Kurwa v. Kislinger, where litigants tried to use a voluntary dismissal without prejudice. They held the remaining claims in their back pocket and even had a tolling agreement. The Court of Appeal was very displeased at that, and the Supreme Court was displeased too, and said: you're trying to manufacture appellate jurisdiction, and you can't do that. So, Mitch, you didn't do that. You took the lesson from the Supreme Court in that case and said, I'm not holding anything back — I'm dismissing with prejudice in this case. I just want review of the claim of mine that had been dismissed, or adjudicated, on demurrer. And the Court of Appeal said, well, no — you filed a dismissal with prejudice, and that acts as a forfeiture of your claims, not only in the trial court, but also a forfeiture of your right to appeal. That's what I thought was surprising in this case.

Even in disclosure, I submitted an amicus brief in this case on the issue of whether it makes a difference whether the case-ending document is a voluntary dismissal or a judge-signed dismissal. My point was that formal difference doesn't matter for purposes of appealability, because they're both final orders — they both completely end the case, with nothing else to be done in the trial court. That's the touchstone for appealability. So the court shouldn't be bothered by the fact that there's no judge-signed document ending the case, because the document that does end the case ends it just the same. But that wasn't the opinion of the Court of Appeal or the Supreme Court in this case.

So, with that setup — and with that kind of trapdoor, don't use a Judicial Council form dismissal to try to get to an appealable order — Mitch, take it over. Give us the setup: what this case was about, what you were trying to avoid, and what happened at the Court of Appeal and Supreme Court.

Mitch Mitchell: One of the things about this case, and I know a lot of practitioners may not necessarily know it, and it seems like the court de-emphasizes it, but let me tell you a little about the facts. Glenn Maniago is a scrub tech at Eisenhower Medical Center in Rancho Mirage. He works as an employee of the hospital, and the hospital retains, as independent contractors, Desert Cardiology Consultants. DCC does a lot of emergency heart procedures, and Glenn is a highly trained scrub tech assisting with that — as you can imagine, in open-heart surgery there's a lot of blood involved. Dr. Pangalore, one of the defendants working with Glenn, failed to follow basic safety procedures. The procedure is that when you discard saline solution and blood, you put it into a bucket, and that bucket prevents splashing. That's basic common sense, but it's also a matter of law for how you treat biohazardous material. Instead of putting it in the bucket, he splashed it onto the paper covering the patient. The blood splattered all over the room —

Tim Kowal: So this is a big splatter. It wasn't just a droplet.

Mitch Mitchell: It's a big syringe with saline and blood in it, and the blood goes into my client Glenn Maniago's eyes. It was later determined that the blood was HIV-infected. So he had to take antivirals, and those have side effects — they told him don't even kiss your wife for six months. That's what happened.

Tim Kowal: My gosh. So that's the basis of the loss-of-consortium claim.

Mitch Mitchell: Right — that's the basis of the loss-of-consortium claim. A pretty tough experience. Now, what ends up happening is we bring the suit in Riverside County. The Superior Court judge sustains the demurrer. Geneanne Maniago has five causes of action; Glenn has four. In the order, the judge is very specific: as to this cause of action, as to this cause of action, as to this cause of action for Glenn Maniago, I'm sustaining the demurrer with leave to amend — he left one cause of action. He also struck the attorney's fees claims, prejudgment interest, and punitive damages. He viewed this as a medical malpractice case. This case had the potential to upend a lot of what MICRA has been held to limit doctors' liability — I think there was a bigger dynamic to this case. They didn't want that issue to get to the Supreme Court. So the demurrer was sustained as to three of Glenn Maniago's four causes of action, and several of his claims for relief.

Geneanne Maniago, the wife, had five causes of action, which included the loss-of-consortium claim. The judge, instead of saying "I'm sustaining the demurrer to the first, second, third, but not the fourth or fifth," said in the order: I'm sustaining the demurrer to all of Geneanne Maniago's causes of action. Now, why this matters is that the case law says if it substantially impedes or reduces the plaintiff's claims, or affects notions of justice — this is Meinhart — then an order sustaining a demurrer can be final and appealable through a voluntary dismissal with prejudice, some cases say without prejudice too, we'll get into that. But here, the order said "all." The court has to get around that.

What the Court of Appeal did in the Fourth District, and what the Supreme Court also did, was say Geneanne Maniago had one cause of action left — they have to. But that's not really what happened. The court order said "all," and that was an interpretation the respondents didn't agree with on the initial appeal, and we didn't agree with on appeal either. So that makes a big difference.

Tim Kowal: Well, let's back up and explain for the audience why it matters what was decided by the demurrer and what wasn't. Because the line the Supreme Court ultimately draws is that to get to appealability, there has to be a court adjudication on the issues. So it looked at the claims that were dismissed, or adjudicated, by the demurrer — even though they were with leave to amend, and we'll get to that — and then there were claims that were not addressed or adjudicated by the demurrer, and those were the claims you intended to dismiss by way of the voluntary dismissal, so you could get to review of the issues that were adjudicated by the demurrer. So when the court said all of Genie's claims are dismissed, we get into the question: does "all" really mean all?

Mitch Mitchell: Exactly. And the argument — the novel interpretation — was that the Fourth District said the loss-of-consortium claim was explicitly omitted by the defendants from their demurrer. They said, we are not seeking demurrer on the loss-of-consortium claim. So the court could have said "as to the first, second, third, fourth, but not the fifth cause of action, for loss of consortium." The court didn't say that — it said "all causes of action." So there was a loss-of-consortium claim left for Geneanne Maniago, and for Glenn, the court knocked out all the causes of action except negligence. So in the court's view, negligence and loss of consortium were preserved. And when we —

Tim Kowal: Yeah — I just want to play devil's advocate for a minute, maybe I'm jumping ahead a little, but the distinction in the Supreme Court's mind is that there can be an adjudication only by the court, and claims that are voluntarily dismissed are deemed forfeited — you don't have the right to appeal those. So we need to zero in on what claims the court actually adjudicated. If the court said "I'm adjudicating all of Genie's claims," and looks at that and says the claims that were adjudicated can be reviewed on appeal, and the claims that were not adjudicated are deemed forfeited if they were dismissed — so the question is, to play devil's advocate, if the court comes out and says "all doesn't mean all" because some of those claims weren't raised in the demurrer, so the court couldn't have meant literally all the claims are dismissed — it could only mean all the claims that were raised in the demurrer are dismissed. But what if, to play devil's advocate, the defendants had submitted a proposed judgment of dismissal of all claims and the court signed it? Would that be an appealable order? Because it says it's a judgment, but "all" doesn't mean all, so it's not truly a one-final-judgment because it doesn't adjudicate all of Genie's claims. Or would the court look past that and say, well, no, we got the label that's going to let us dispose of your case, and if you didn't appeal from this judgment, we're going to deem you to have waived your right to appeal? I just feel like this is all a recipe for using labels to meet a certain objective. I get nervous whenever these labels are used equivocally.

Mitch Mitchell: The court does recognize that there's precedent that says "all of the causes of action." What distinguishes Ashland, for example — one of the primary precedent cases we relied on — is that there were two causes of action, and the court sustained the demurrer without leave to amend on both, unequivocally. In this case, we think it was all as to Geneanne, and one as to Glenn Maniago. Under all the other precedent we cite — Santa Clara, Ashland, Austin — it doesn't really matter if there's one claim left or two. The standard was whether it substantively affected the case. That's why this is a new ruling. So going forward, if you're a practitioner, it has to be unequivocally, absolutely, all causes of action — which I don't think you're going to see on demurrers often, because in my experience, a lot of trial judges will say, all you need is one cause of action, and I'll leave you with one and get rid of everything else, and hopefully you'll go settle the case. The problem is that depending on how they do that, the chance for an appeal on the causes of action where the demurrer was sustained — you can't really appeal that until after the trial is over, and then it has to reopen discovery and reopen everything. So there's real pressure on plaintiffs, and on the courts, and it makes things much more expensive and time-consuming.

Tim Kowal: One of the details that made this outcome surprising, in my mind, is — as I mentioned at the beginning — there's the Kurwa v. Kislinger case that presents this Kurwa trap. If you're trying to expedite to an appeal by dismissing the remaining claims, but you don't really dismiss them and just hold them in your back pocket, that's perceived as manufacturing appellate jurisdiction. So you don't want to get stuck in that trap. That case wound up going back and forth between the Court of Appeal and the trial court a couple of times, and then up to the Supreme Court and back down — I think there was an extra three years of appellate litigation before they finally dug themselves out of the trap. So you avoided that trap by not holding anything back — you dismissed with prejudice. There was no secret tolling agreement to keep the claims alive. And when you submitted the form request for dismissal, you also submitted a declaration explaining that the purpose of the dismissal was to expedite appeal of the claims that had been adjudicated by way of the demurrer. So it was clear on the record what you were doing, and that it wasn't intended as an abandonment or forfeiture of your appellate rights. That was one of the procedural points I thought was interesting — I don't think it was addressed, I think it was mentioned in passing in the Supreme Court's opinion, but obviously the court didn't think it changed the outcome. I'm wondering if you have any insight into why that didn't factor into the Supreme Court's thinking.

Mitch Mitchell: Right — so, if you look at the Ashland case again, because it's an important one, I'd already spent a lot of time researching this issue because I didn't want to fall into any traps. There's at least one case that goes against Kurwa and says that dismissing without prejudice is acceptable — that's the Barry case. But now, based on Kurwa and this new Maniago case, it really does have to be with prejudice. I knew the standard from Santa Clara and Ashland was that it's okay if the dismissal is done for the purpose of expediting the appeal. Ashland doesn't exactly explain how, but it says the plaintiff in that case put on the record, somehow, that it did not agree with the court's order sustaining the demurrer, and that it was only dismissing voluntarily with prejudice for purposes of appeal. I don't know exactly what happened in Ashland on that point, but I thought we needed this on the record, so I filed a declaration simultaneously with the voluntary dismissal with prejudice. The court mentioned it — I don't think anyone really challenged the idea that we had that motivation. But if you look at the amicus brief from the —

Tim Kowal: California Academy of Appellate Lawyers.

Mitch Mitchell: That's it. If you look at their brief, they said it doesn't matter what the intention is. So from their viewpoint, it doesn't matter whether I filed the declaration or not. The court didn't say it didn't matter that I filed it, but it does say, essentially, that intention doesn't matter anymore. That point from Santa Clara and Ashland no longer applies.

Tim Kowal: Let's examine the court's position on intention a little more. I want to look at footnote 7 of the opinion, because it talks about something that happened at oral argument. It was surprising to me because they're citing something said at oral argument rather than something in the briefs — I don't recall this from the briefs. The court says that plaintiff's counsel confirmed at oral argument that plaintiff's position is that if they were permitted to proceed with, and ultimately prevail on, their appeal, they would then be permitted to continue litigating all of the claims pleaded in their complaint. So, in other words, it seems like, by footnote 7, the court is intellectually grouping you within the Kurwa line of cases — that you're trying to manufacture jurisdiction, holding these claims in your back pocket to expedite the appeal and then resurrect them later.

Mitch Mitchell: Yeah, here's the challenge — I agree that's what the court is trying to do. The problem is the language from the majority of the cases — Ashland, Santa Clara, and so on — is that the request for dismissal isn't really a dismissal of all claims. It's not really voluntary. The actual world versus the language: this isn't voluntary. The reason you have to dismiss all the claims is the one-final-judgment rule — everything has to be final, nothing left to litigate. So to satisfy that language, you have to voluntarily dismiss all claims, even the ones the court didn't eliminate. It's not because we're dismissing those claims because we don't want to litigate them, or because we agree with the court — we're dismissing them because finality means nothing left at the trial court. So it's kind of a respect for the one-final-judgment rule, but also a wink and a nod to it, if that makes sense.

But the court is basically saying — based on this and some other sections of the opinion — to appellate practitioners: you can't do that. Once you voluntarily dismiss, those claims are gone. Which basically forecloses the idea of going up on an interlocutory basis when the Superior Court sustains a demurrer as to some or all of your claims. You'd better be careful, because if you dismiss the other claims to get up on appeal, they're gone. That didn't used to be the rule — that's the rule now. If you read the opinion, they say there were two options: go up on a writ, which would have been nearly impossible because writs rarely get granted; or get a judgment on the causes of action the judge actually sustained, and then dismiss the other causes of action — but you can't bring those back. So if you dismiss your other causes of action to get to appeal, it's over.

Tim Kowal: I wanted to go over what the court says litigants should do in this situation. There's a section of the opinion titled "Procedural Mechanisms That Would Have Allowed the Maniagos to Obtain Expedited Review." The first one, as you said, is just seek a petition for writ of mandate — and then, of course, they have to add in a footnote that they express no view as to whether the Maniagos would have been entitled to writ relief had they pursued that option, which is the judicial equivalent of a shrug emoji. If it's a real client who's getting ready to write a check and asking, is this going to work, I usually have to say no — keep your powder dry, just wait, get a final judgment.

Mitch Mitchell: Yes. The court's opinion actually does acknowledge that the likelihood of getting a writ of mandate was next to nothing.

Tim Kowal: But it is — if you're writing a treatise, that's one of the conceivable options.

Mitch Mitchell: And theoretically — I'll tell you, we did raise that issue with the Fourth District at oral argument. I asked, if you don't think this is an appeal, you have the authority to grant a writ right now — why don't you do that? I actually said, why don't you grant a petition for writ of review, or a petition for mandate, in this case? That's on the record — they kind of avoided the fact that we raised it at the hearing in the Fourth District. But anyway.

Tim Kowal: And then the second method the court outlines for how the Maniagos could have obtained expedited review of the trial court's orders is — and this is a bit of a circuitous route — first, seek a judgment on the claims that were subject to the demurrer. Okay, that's step one — you have to get a signed judgment or order, because it's not a full, final judgment, so I guess it would be called a partial judgment, or maybe just a signed order — but it has to be a judge-signed order on those claims saying they're adjudicated by way of the demurrer. Then step two would be to abandon the claims that weren't subject to the order through the voluntary dismissal, which is basically what you did. And then step three: there would have been a final resolution of every claim, by way of the judge-signed order on the demurrer issues and the voluntary dismissal abandoning the other claims not subject to the demurrer, and then the Maniagos could have requested a final judgment from which the appeal could be taken. So you have to get not one but two judge-signed orders — a signed order on the demurrer issues, and then the voluntary dismissal, and then a judge-signed judgment — which seems very circuitous. I have to ask: how is that different, practically speaking, from what happened here?

Mitch Mitchell: There is no difference. That's the answer — there is no difference. In your original writings and discussion of this case, Tim, there are a lot of distinctions without a difference — the distinction between a clerk-entered Judicial Council form versus a judge-entered order. I'll say this: everything we did is exactly what the court is now saying to do. But the dangerous part for practitioners is that if you do what I did — or what the court now says to do, which is really a distinction without a difference — when you dismiss those two, quote-unquote, "viable" claims, the ones that weren't the subject of the demurrer, they're gone. You can't bring those back. So you're really banking on the claims where the demurrer was sustained surviving appeal and coming back — but when you come back, the two you dismissed with prejudice voluntarily are gone. You don't get to bring those back. That's really dangerous. So what that basically means to me is: you cannot appeal an interlocutory order that substantially impacts or eliminates all your claims until after you go to trial and there's a final order, or after summary judgment — and even then there are questions about the finality of that too. Because of the one-judgment rule, and the way the respondents were arguing, a trial court judge can spontaneously change their mind at any time and reverse their order. I've never seen that happen. Tim, if you've ever seen a judge go home, have a beer and a barbecue over the Fourth of July weekend, and decide the order sustaining the demurrer was really bad and reverse it spontaneously — good for you. I've never seen anything like that happen.

Tim Kowal: I think that possibility is what's lurking in the Court of Appeal's mind when it comes across appeals from an order granting summary judgment, for example — where there's no document entitled "judgment," just an order granting summary judgment, and it's been several weeks or even months since that time. Obviously the judge isn't going to come back and rethink it now — the morning after has passed, there's none of those immediate second thoughts. So the Court of Appeal will say, this has the same effect as a judgment, and it would be needlessly circuitous to send the appellant back to ask the trial judge for a formal judgment, then file a new appeal, designate the record, go through all the rigmarole, and get back to it two years from now. That's unnecessary, so we'll just treat this as a judgment. Why couldn't the court have done the same thing with this demurrer? Possibly because it didn't adjudicate all the claims — it was only certain issues — but then the voluntary dismissal addressed that, so you still had, effectively, a judgment or adjudication of the main issue you wanted review on. So now that takes us to the five-day issue. The court granted some number of days — what was it, ten to twenty days? — and you were some number of days into that period, but had five days left when you filed the voluntary dismissal.

Mitch Mitchell: Yes.

Tim Kowal: And that became a centerpiece of the Supreme Court's decision — saying that no, actually, it was not an adjudication. It might have been an adjudication if you'd waited five or six more days, because at that point the demurrer issue would have been adjudicated — there would have been an order sustaining the demurrer with leave to amend, and the period to amend would have run and expired without an amendment. That operates as basically a confession that there are no further facts that could have saved, or led to, a different outcome on the demurrer — so that might operate as an adjudication, and that might have led to a different result. Tell us a little about that — I have something else that comes to mind, another fault line the court may have stepped on that caught me off guard.

Mitch Mitchell: Maybe. It leads to two things. First, the court says — and it throws this into the footnotes, and this is one of those cases where you absolutely should look at the footnotes as being just as important, if not more important, because that's where the bodies are buried — there's a footnote about leave to amend. Let me back up. Meinhart actually says that a demurrer without leave to amend can be sufficient adjudication for appeal. And in that case it wasn't the main reason, but it said it two or three times — I'd call it dicta — "without leave."

Tim Kowal: Yeah, Meinhart — the procedural posture in Meinhart was that there had been an order granting a petition for writ of mandate, but in those kinds of proceedings, under Section 1085, the final judgment is the writ of mandate, which is to follow. So an order granting a writ of mandate is basically the equivalent of an order granting summary judgment — the writing's on the wall, you know what's going to happen, but it hasn't happened yet.

Mitch Mitchell: Right. And there are cases where it's pretty clear — Meinhart uses this language, that it's pretty easy to figure out, in the case of a demurrer without leave to amend, that it's sufficient for appeal, and it uses that kind of language. But we were basically standing on our first amended complaint — we had already amended once, to address some of the issues defendants had raised, and there were no new facts. It's well settled that you can stand on your pleadings and appeal — that's the Miles v. Deutsche Bank case. And the court acknowledges that, but at the same time says you can't really — you have to wait out the whole time period for amendment.

Now, there's one possibility the court doesn't address: what if you say, okay, I need a judge-entered order, and the judge doesn't grant it? There are cases where a judge refuses to sign the order, or doesn't want to, for whatever evasive reason — maybe they don't want it to be an appealable order or judgment. So in that instance, it gets tricky for a practitioner — your judge isn't signing for you, and because of that, do you risk treating it as an appealable order or not? I don't know if I would, under Maniago. I think you have to be extremely formalistic — you have to wait out the whole leave-to-amend period, and then get the judge to enter the signed order, and then the signed judgment. And if you have any causes of action left, you have to dismiss them — but if you dismiss them, you can't bring those back if you win. Really, what this is saying is the one-final-judgment rule means you have to go all the way to the end, and then you get to appeal the interlocutory order on the demurrer, or a motion for summary adjudication — not summary judgment.

Tim Kowal: In a sense, I do think this opinion is of a piece with Meinhart, in taking a very legalistic or formalistic view of appealability.

Mitch Mitchell: Mm-hmm.

Tim Kowal: In Meinhart, though, I'll say it took that formalistic view with the effect of preventing the right to appeal from being forfeited or lost — because in that case, the respondent was arguing, aha, there's an order granting the writ of mandate, you didn't appeal within the statutory time, so your appeal is abandoned. And the court said, no — it didn't quite say it wasn't appealable, or that you could never appeal from it, but it did say that the time to appeal never ran. So it left open the possibility that the Court of Appeal could still, in its discretion, grant review of an otherwise non-appealable order — like an order granting a petition for writ of mandate, or an order granting summary judgment — but the time to bring that appeal from such an otherwise non-appealable order would never run.

Mitch Mitchell: Right. The problem there — if you look back at the facts — is there were three or four different orders that could have been viewed as judgments. There was a minute order, one that was a stipulation between the parties, one that was a stipulation and request for an order from the judge, and they were all separated by about a month. The defendants argued the original minute order was the operative order, so the plaintiffs missed the sixty days. The plaintiffs argued the operative order was the final one — the judge-signed final dismissal. And the Supreme Court said: we don't want to construe these jurisdictional rules to deny appealability. We don't want an inadvertent waiver of appellate rights. Guess what — that's out the window now. If you follow what you think is the law — and by the way, we did follow the law, it was the majority position; Yancey was the outlier, and there were some different ideas in the Fourth District about it.

Tim Kowal: Yeah, you're talking about the fault line — the conflict the Supreme Court granted review to resolve was between the outcome in the Maniago Court of Appeal decision and another case, Yancey, which had held no appeal from a voluntary dismissal — but then there were other cases that held the opposite.

Mitch Mitchell: Right — a lot of cases. The majority view was clearly the Ashland and Santa Clara line — Santa Clara was cited favorably by the Supreme Court on this issue. It was the law. And the cases Yancey relies on — particularly Cook v. Cook, and Associated Convalescent — are factually very different, because there you have a defendant trying to appeal after the plaintiff voluntarily dismisses the case. So the appellant wasn't the plaintiff, and the dismissal wasn't for the purpose of expediting the plaintiff's appeal — it was because the plaintiff was done with the case, and the defendant was trying to appeal a post-dismissal attorney's-fees order or something along those lines. Very different situation. So now, if you're not absolutely certain, unless it's definitively "all," you have to have judgments, finality, and a judge's signature. That's the only way. And if you voluntarily dismiss anything, it's gone. That's not a voluntary dismissal for purposes of expediting appeal anymore — that doesn't exist.

Tim Kowal: The court also, in footnote 10, talks about the Ashland case you mentioned: "We also disapprove of language in Stuart v. Colonial Western Agency," which Maniago cited, stating — quoting from Stuart — "appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." That was good law, and pretty much on all fours. Now, we talked about one way the court distinguished this, by saying there wasn't really an adjudication here because the court granted leave to amend and the period to amend hadn't expired — so it could have said Stuart is still good law, this case just didn't meet Stuart because there was no — what was the language from Stuart — "entered after an adverse ruling." The court might have said there was no truly adverse ruling here because it was only a demurrer sustained with leave to amend, so that's not adverse. But the court went out of its way to say, no, we also disapprove of that rule from Stuart. So even if there had been a truly adverse ruling, the outcome presumably would have been the same. Is that your understanding?

Mitch Mitchell: Yes, that's exactly right. The definition of "adverse" — there are several cases with different facts. For example, an order denying attorney's fees — one case said that's appealable. Another said, okay, you eliminated two out of four causes of action, or three out of six, or five out of six — it didn't matter if any cause of action remained. You could dismiss the case, because the order sustaining the demurrer, or granting relief against the plaintiff, was substantial and important enough that it eviscerated a substantial portion of the plaintiff's case — that's going to be appealable. That's what those cases said. That doesn't exist anymore. Now it's basically: the trial court has to sustain the demurrer without leave to amend, and the court has to sign the order. That's basically the only thing that's going to make a demurrer order appealable. It's a very bright line, I'll give them that — but it's not what the law was, and it's inconsistent with what the statutes say about judicial economy and preserving the right of appeal, and what Meinhart said. It basically eviscerates any chance of efficient litigation of claims, because demurrers have become more like summary judgments now — they're not disfavored like they used to be, courts are pretty aggressive with them, but they'll preserve one claim, and that means you can't have any kind of appeal of that until the very end of the case.

Tim Kowal: Like I said, I think part of this is of a piece with Meinhart, where the rules were drawn very narrowly and technically, but with the aim of making sure litigants weren't caught by surprise and found their right of appeal denied. Same with Allen v. American Honda, which says that the document triggering the sixty-day period to file an appeal — if the clerk sends a notice of entry in one piece of mail and the actual order in a different piece of mail, not attached — appellants aren't required to assemble, like Frankenstein's monster, the document that creates the triggering document. So the court strictly construed rule 8.104 and the related appellate rules — not to be mean, but to protect the right to appeal. This case strictly construed the rules about the effect of a voluntary dismissal, the one-final-judgment rule, and everything else, but with the effect of denying your clients the right of appeal. So that's how it's different from those other cases.

Mitch Mitchell: That's absolutely right. And what's interesting is that Meinhart says the Supreme Court has never interpreted rule 8.104, or any of the appellate jurisdictional rules, to deny an appellant's right to appeal — we want to preserve the right to appeal, especially because we don't want to allow inadvertent waiver of the right to appeal. In this case, I wouldn't say we were inadvertent — I'd say we were completely consistent with the majority view. And now the Supreme Court has basically said we were wrong for following the majority view. Which, to me, is surprising.

Tim Kowal: Yeah, I would have thought there was a decent chance the court might, at a minimum, send this back with directions to consider whether it should be treated as a writ of mandate — out of that view of not catching appellants off guard, finding that their right of appeal was stripped away even after they followed the rules. You followed the rule book, the cautionary tale of Kurwa. You followed the Ashland and Stuart cases that say, if I've got an adverse ruling, I can get to an appealable judgment by voluntarily dismissing the rest of the claims, so I have a final, case-ending document that should give the Court of Appeal jurisdiction to review the previous interlocutory orders under Code of Civil Procedure section 906, which allows review of the orders preceding the final case-ending document. So this makes it interesting.

Mitch Mitchell: I'm not really sure why the court decided to go this route in this instance. There are several cases — at least three coming out of the Second District. One of them involves Chase Bank actually arguing against the appealability of an order — three different cases in the last eight or nine months. In one, the court said, we're denying jurisdiction based on Ashland, and even though Maniago was pending, we're sticking with Ashland. Another said Maniago is right. And another says Maniago is wrong, Ashland is right. So it created a bit of a mess. Now we know for sure the position is Wen v. Zhu, W-E-N versus Z-H-U, No. B345073 — an unpublished opinion, but that's the one that stuck with Maniago — Chase was on the defendant's side in that one.

Tim Kowal: What would have happened — this is my last question — if instead of a voluntary dismissal of the entire action, you had said "voluntary dismissal of these causes of action only," and identified causes of action two, three, and five, or whatever they were, omitting the causes of action that had been addressed and adjudicated by the demurrer? Would that have changed the outcome?

Mitch Mitchell: No — because you still don't have finality. The idea behind all the precedent was that you can't have anything outstanding at the Superior Court. The rule of finality is that everything has to be adjudicated and done at the Superior Court. So if I'd preserved anything there, I wouldn't have had an appealable order — anything left at the Superior Court means it's not final. So I had to dismiss all the causes of action to get anywhere. If I'd only dismissed a few of them and left some outstanding, stayed pending appeal, the Court of Appeal would have said it's not final.

Tim Kowal: You don't have one final judgment — you'd have to go back and get a judge-signed order that says, we adjudicated claims one and three, say, on demurrer, and claims two, four, and five were voluntarily dismissed, and so we're entering this judgment of dismissal.

Mitch Mitchell: Right. And if I'd dismissed those remaining claims without prejudice, that would still leave the possibility of litigating them in the future, so that's not final either. Honestly, the only safe action a litigant has after Maniago — unless the legislature amends the rules of civil procedure —

Tim Kowal: Is to go all the way to the end, or go through that three-step process of getting a written order.

Mitch Mitchell: But if you do that three-step process, you're dismissing —

Tim Kowal: I'm not even sure why the court said you have to get a written order on the demurrer. Isn't the minute order good enough?

Mitch Mitchell: Apparently not. The problem is — and Maniago says this — I have to dismiss all my claims with prejudice, and if I dismiss the claims that weren't subject to the demurrer order with prejudice, they're gone. I can't come back and reopen those. They're done. So what you risk is: the claims the court didn't sustain the demurrer on are now gone, and you have to win the appeal on the one the court did sustain, and then come back with only those claims left. That's pretty brutal, I think.

Tim Kowal: I mentioned earlier that I thought the opinion steps on potentially another fault line — when it says that if you voluntarily dismiss before the actual adjudication, that means there's no adjudication, full stop. Why I thought that was a fault line — that wasn't what I understood before. Here's the reason: years ago I researched this issue, and there's a case, Mary Morgan, Inc. v. Melzark, which held that a litigant — I think it was a plaintiff — right before the trial court decided a defense motion for summary judgment against the plaintiff, the plaintiff voluntarily dismissed the claims. Why did the plaintiff dismiss? Because of a contract issue with a prevailing-party attorney's-fees provision, and the plaintiff didn't want to get saddled with a prevailing-party determination. If you voluntarily dismiss, that's a defense to Civil Code section 1717 prevailing-party fees. And what did the court hold? That even though the plaintiff technically voluntarily dismissed, the writing was on the wall — because in that case there had either been a tentative ruling against the plaintiff, or it was after the hearing and there were comments from the court that the motion was going to be granted. So the writing was on the wall — the plaintiff knew an adjudication was imminent — and the court said, no, that's not a true voluntary dismissal.

That's the case I thought of when I read this — the demurrer had been decided against you. Yes, you had leave to amend, but if you'd decided there were no further facts that could save the case, then a voluntary dismissal is basically a confession that you have no further facts, and you're just circumventing the adjudication. In other contexts, the court would not have found a true voluntary dismissal — it would have said your back was against the wall, facing an adjudication, and you're just trying to slither away from it. That's not voluntary. So that's the fault line I thought maybe litigants trying to get away from an imminent adjudication that would saddle them with prevailing-party attorney's fees might now exploit — just file the voluntary dismissal and cite Maniago, which says voluntary means voluntary, it says right on the document, and there's no gainsaying it.

Mitch Mitchell: That's right. And remember, Ashland specifically said the request for dismissal was tantamount to a request to enter judgment on the defendant's demurrer — it was obvious what was going to happen, we know where it's going to lead. And in our case, the case I really like is Miles v. Deutsche Bank, which says we're not expecting the plaintiff to start making up facts — if you've already pled all the facts and everything's in the pleading, we don't need you to do any more, we know it's inevitable. So you're exactly right — in this case, if you try to get around prevailing-party attorney's fees by voluntarily dismissing, no, that's just you being evasive. And I think that's also a real challenge for defendants in these kinds of cases, because when the plaintiff voluntarily dismisses, and the defendant wants to appeal — the defendant thinks they're going to appeal — the court says, that voluntary dismissal is an administrative act with the judge, and you can't appeal it. The plaintiff isn't trying to appeal, the defendant is. So that can prevent a defendant from appealing too — I was on the plaintiff's side in this case, but the same rule applies to defendants. So I think the real effect of this case is that it creates a procedural mechanism to reduce appeals — which is actually the opposite of what cases like Meinhart say. Meinhart says we want to preserve appeals. The California Supreme Court has just announced: we don't want to preserve appeals, we want to foreclose the right of appeal, whether it's the plaintiff's side or the defendant's.

Tim Kowal: All right, Mitch — thank you so much for this conversation and for bringing this important case to our audience's attention. I'm sure you wish you were bringing this news through a favorable decision, but at least our audience has certainty, or a little more certainty, than before.

Mitch Mitchell: Right — well, I thought there was actually quite a bit of certainty before. I thought the line of cases we relied on was the majority position. But the Supreme Court really changed the game. There is clarity now, but I think it's unfortunate clarity, because it really requires parties, if they're at all uncertain, to litigate all the way to the end and then appeal — and then go back and retry the whole case on the claims they should have been able to address at the beginning. That's unfortunate, I think.

Tim Kowal: All right. We'll leave it there. Again, we'll post the upshot, or the money language, from the opinion in the show notes. But basically, you have to follow a three-step process if you're handed a devastating interlocutory ruling and you want to get to appeal — and the Court of Appeal has either summarily denied your writ petition, as it does ninety-nine percent of the time in these situations, or you don't want to go through that hopeless endeavor and instead want an actual appealable order — you have to follow the three-step process: get a written order on the interlocutory adjudication, and then voluntarily dismiss the rest of your claims — not the entire action, just the other viable claims.

Mitch Mitchell: Viable claims, yeah, they call them.

Tim Kowal: Right, just the other viable claims. And you still have to do it with prejudice, because if you do it without prejudice, you'll fall into the Kurwa trap of attempting to manufacture jurisdiction. And then get a second, judge-signed judgment of dismissal confirming the entire case has now been adjudicated, and that will be the order you list in your notice of appeal.

Mitch Mitchell: Right. And the warning is, again, if you dismiss those viable claims with prejudice, which you have to do, you may not be able to bring them back later. That's kind of the ante for going forward with the appeal — because finality means you have to get rid of everything at the Superior Court, and you may not bring it back. That's why I tend to think, unless you have an order sustaining the demurrer as to all of your claims, which is pretty rare these days, you have to wait until the end, pragmatically speaking.

Tim Kowal: Yeah, I guess that's just the unfortunate thing for any plaintiff — you want to allege all the claims you have, you don't want to hold anything back, but if your marquee issue gets adjudicated in an interlocutory ruling, you have to really think about whether you want to burn all the fuel necessary to get to a final judgment by litigating all your secondary and tertiary claims.

Mitch Mitchell: That's a tough conversation to have with the client, for sure — that's definitely got to be a client decision.

Tim Kowal: Mitch, you were telling me something about the practical effects of this case, and how this is going to benefit defendants — especially insurance defendants — in these kinds of cases, because of the practical effect of requiring plaintiffs who get dealt a devastating ruling on one of their main claims to, in most cases, unless they get writ relief in those rare cases, be forced to litigate to the end. How is that going to play out practically in the economics of these kinds of cases?

Mitch Mitchell: Going back to this case — the order sustaining the demurrer, and the order granting the motion to strike, held that Glenn Maniago, who was not a patient but a co-worker of the defendants, was going to be prevented from asserting punitive damages and attorney's fees, because the court deemed this a MICRA case, a medical malpractice case. So what would have happened, if we follow what the court says, is we would have gone all the way to the end, litigated the entire case purely on a negligence, medical-malpractice theory, and Geneanne would have had no cause of action left. We'd go all the way through motion practice, pretrial prep, pretrial motions, and trial — and then, after the jury verdict and the judgment, we'd be able to appeal the order sustaining the demurrer. That reopens the whole case, because I think we would have won, based on the California Supreme Court's interpretation of medical malpractice in Gutierrez — a case from about a year ago — which held that an ambulance driver who injures a third party who isn't receiving treatment isn't protected by the medical malpractice rules. Then we'd have to go back to the Court of Appeal, maybe the Supreme Court, and then relitigate the entire trial. That could be five, six, seven years later — instead of doing it efficiently, which is why the judicial-economy concerns in Meinhart are so important. It basically puts plaintiffs in a position where they might not be able to financially handle that kind of a case, given the length and duration of it.

Tim Kowal: So if we put some numbers on this as a law-and-economics analysis — I don't want to put you on the spot with numbers for this particular case, but say you take a case worth, I don't know, a million dollars, and then a devastating ruling on one of the main causes of action and a demurrer cuts that down to, say, a fourth — so now you're litigating over maybe a quarter million dollars at most. You're going to spend that once or twice over just getting through trial and experts. So all of a sudden your negotiating posture is completely inverted.

Mitch Mitchell: Absolutely. So what ends up happening, when the judge sustains the demurrer on the view that this is a medical malpractice case and strikes the damages — including attorney's fees, prejudgment interest, and punitive damages — is that it changes the economics of the case, to the point where it becomes almost impossible for the plaintiff and plaintiff's counsel to carry on. Because the issue of whether it was actually a medical malpractice case — which was the substance of the appeal the Fourth District refused to hear — never gets decided in this case. It wouldn't get decided until the end of trial, and then it goes up to the Fourth District, and maybe to the Supreme Court and back. Because of MICRA's damages limitations, the case becomes substantially lower in value. We put that on the record, and it just doesn't get addressed. It's supremely inefficient.

Tim Kowal: Do you think this case will change the way these cases are litigated — in the main, or just at the margins?

Mitch Mitchell: I think what's going to end up happening is that if plaintiff's counsel, or the plaintiff, is financially unable to sustain a long battle with a well-funded, insurance-backed defendant, it's going to preclude their claims — basically eviscerate them. They're going to have to settle for substantially less than they might otherwise be entitled to under the law. It puts them in a very bad bargaining position.

Tim Kowal: Do you have any sense of how often plaintiffs find themselves in your situation — following a demurrer on a key cause of action, or a summary adjudication of a key cause of action — and want to expedite their appeal on that issue because it's the issue that's going to make or break the case economically? Is that rare, or more common than we might think?

Mitch Mitchell: I think it's more common than we might think. I can't give you quantitative numbers, but I will tell you, since our opinion in Maniago, there have been at least two different opinions out of the Fourth District, and at least three out of the Second District — and there may be more that are unpublished. It's become an issue, as we discussed earlier — it's common now for Superior Courts to say, all you need is one cause of action, then go settle the case off that one cause of action. Depending on how they characterize it — in this case, characterizing it as a medical malpractice case — it really puts the client in a bad position. I think there are a lot more of these kinds of appeals than you'd expect, and that's why this case may seem like a no-brainer to the Supreme Court, but it actually isn't. It should probably be addressed legislatively.

Tim Kowal: Do you have any ideas how it could be addressed legislatively — just amending the appealability statute?

Mitch Mitchell: Yes, exactly — the section 904 series we talked about earlier. You'd have to redefine what an appealable order is, and get rid of the notion — you'd basically have to codify what Meinhart said, which the court ignored this time: judicial economy, preserving the right of appeal, and no inadvertent waiver. So what you might want from the legislature is: we don't want any inadvertent waiver of appeal rights — if someone appeals too early, send it back and let the case proceed until they can properly appeal, so they don't lose their rights. That's one option. But also, frankly, if we want to save judicial resources — and I hear California courts complaining that they're overworked and underfunded — it would be unwise to have such an inefficient process where we have to relitigate things over and over for plaintiffs and defendants. So I think the legislature has to step in, otherwise —

Tim Kowal: And last question, on this law-and-economics point — do you think trial judges understand that they don't need to knock out the entire complaint, just one key cause of action, and the case will settle and go away?

Mitch Mitchell: That's exactly what's happening right now, I think. That's why demurrers have gone from disfavored to favored — the idea is, let me just force this into a settlement posture. And I'm all for settlements — I'm a huge fan of mediation, I've done many mediations, I like mediation. I went through the Harvard Negotiation program for mediation strategy a couple of years ago, and really enjoyed it. But I think what courts are trying to do is coerce settlements in cases that really should go to trial. Let the parties have their shot at their claims — if the claims are multiple and good, don't try to get rid of them and leave just the one cause of action, because what you end up with is a very biased, unfair settlement between parties that aren't equally leveraged in bargaining position.

Tim Kowal: Well, we'll have to watch for the effects of this decision — we have to assume there will be effects, because the California Supreme Court doesn't take up cases unless it expects downstream effects.

Mitch Mitchell: As I mentioned, there are three cases in the Second District right now with published opinions, and two of them would have had different results than what happened here — and those were just in the last year, plus some in the Fourth District as well. More will come, because this is an easy trap to fall into. I don't think we made a mistake — we followed the majority of precedent, and we were punished for it, unfortunately. I think others will make the same mistake.

Tim Kowal: All right, well, we'll keep our eyes peeled.

Mitch Mitchell: Yeah, absolutely.

Tim Kowal: All right, Mitch — thank you again. That wraps up this episode. If you have suggestions for future episodes, guests, and topics, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. Thanks again, Mitch.

Mitch Mitchell: Cheers, Tim. Appreciate it.