• Get It In Writing
  • August 18, 2011 | Author: Ioana R. Mondescu
  • Law Firm: Archer Norris A Professional Law Corporation - Walnut Creek Office
  • A recent ruling by the Fourth District Court of Appeal confirms that unless an order of dismissal is in writing, signed by the trial judge, and filed, it is ineffective as a judgment under Code of Civil Procedure section 581d.  In Powell v. County of Orange (Aug. 8, 2011)  2011 Cal.App. LEXIS 1024, the court held that neither a stamped, nor a signed minute order meets the requirements of section 581d.  Consequently, such an order does not qualify as a final judgment that might serve the basis for appellate jurisdiction.

    In Powell, following a hearing on an order to show cause regarding dismissal for lack of prosecution, the trial court dismissed the action without prejudice and issued a minute order to that effect.  Neither the minute order, nor any other order from the trial court was signed and recorded in the clerk’s transcript, or in the superior court’s register of actions.

            Subsequently, Powell filed a “Motion to Set Aside Dismissal Judgment”, which the trial court denied.  Powell then filed a motion for reconsideration, pursuant to section 1008, which was also denied by the court.  Thereafter, Powell filed a notice of appeal, identifying the order being appealed from as “Denial of Motion for Reconsideration/Motion to Set Aside Dismissal.

            The appellate court dismissed the appeal for lack of appellate jurisdiction.  The court emphasized that section 581d specifically requires that “dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action” and only “those orders when so filed shall constitute judgments.” (Emphasis added.)

            Accordingly, the court urged strict compliance with the dictates of section 581d, cautioning courts and litigants that final orders of dismissal be accomplished by a separate written, signed order by the trial court and filed in the register of actions in the case, rather than by signed or stamped minute order.

            The court also joins the majority of other appellate courts, and reaffirms that an order denying a motion for reconsideration is not appealable even when based on new facts or law.  In arriving at this conclusion, the court highlights that recent amendments to section 1008 expressly provide that an order denying a motion for reconsideration is not appealable.  If the order that was the subject of the motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.  (The legislation amending section 1008 was signed by the Governor on July 11, 2011, and will become effective on January 1, 2012.)