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“Say what you mean and mean what you say” has always been sage advice. If the California Supreme Court upholds a February decision by the Second District Court of Appeal, Division Three, following that advice will become compulsory for any litigant who wishes to have an appeal heard at the court of appeal. In Walker v. Los Angeles County Metropolitan Transportation Authority, 116 Cal.App.4th 43, a jury returned a defense verdict on plaintiff Renee Walker’s allegations of wrongful termination in violation of public policy and the whistle-blower statute (Labor Code � 1102.5). Following entry of judgment, Walker moved for a new trial and for judgment notwithstanding the verdict. After the trial court denied those motions, Walker filed a notice of appeal, which stated: “Plaintiff, Renee Walker, appeals from the following order entered in the above-entitled action: 1) the order denying plaintiff’s motion for a new trial, which motion was heard on Jan. 3, 2002, and which ruling was set forth in a Notice of Ruling, dated Jan. 4, 2002.” This was an obvious error — an order denying a motion for a new trial is not appealable under settled law. Nothing new there. The meatier question for the court of appeal, however, was whether the erroneous notice of appeal could or should be “liberally construed” to embrace an appeal from the judgment rather than the non-appealable new trial denial order. The court held, in essence, that “liberal construction” does not mean “rewrite,” and therefore, the appeal should be dismissed. The court began by quoting the familiar mantra in California Rule of Court 1(a)(2): “The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the court of appeal for the district in which the superior court is located.” (Italics added by the Walkercourt.) As the court saw it, the italicized language requires the appealing party to specify the order or judgment from which it is appealing. Here, Walkerheld, the principle of liberal construction did not apply because the notice did not need any “construing” — it stated Walker was appealing from the order denying her new trial motion. The court also relied on two lines of cases. First, it noted the cases that have held that a notice of appeal that describes a portion of the judgment does not bring the remaining portions before the reviewing court. E.g., City of Long Beach v. Croker National Bank, 179 Cal.App.3d 1114, 1118 n.7 (1986). Walkercited those cases for the proposition that a notice of appeal that states a “clear intention” to appeal from an order denying a motion for new trial cannot be construed as a notice of appeal from the judgment. To make the same point, Walkeralso cited cases that have dismissed purported appeals from an order denying a motion for new trial and that have proceeded to discuss the appellant’s contentions relating to the judgment only because the appellant stated in the notice of appeal that he or she was also appealing from the judgment. See Rodriguez v. Barnett, 52 Cal.2d 154, 156 (1959); Fugo v. Cutter Laboratories, 68 Cal.App.3d 744, 749 (1977). Before Walker, at least three reported decisions had construed a notice of appeal from an order denying a new trial as an appeal from the judgment. Tillery v. Richland, 158 Cal.App.3d 957, 962 (1984); Lacount v. Hensel Phelps, 79 Cal.App.3d 754 (1978); Shankoff v. Dant, 258 Cal.App.2d 101, 102 (1968). Walkerbrushed aside these cases, however, as being long on conclusion and light on analysis and found them irreconcilable with Rodriguez. For the same reasons, Walkerrejected statements in the appellate treatises (by Witkin and the Rutter Group) to the effect that a notice that purports to appeal from an order denying a new trial motion may be deemed to constitute a notice of appeal from the judgment. By its holding, Walkerbroke new ground. The critical distinction between Walkerand the cases on which it relied was that in Walkerthe appellant did not identify any appealable order or judgment in addition to the nonappealable order denying her new trial motion. Thus, in the cases on which Walkerrelied, the appellant obtained appellate review by virtue of the notice’s reference to the judgment, while Walker was denied appellate review altogether. Walker’s holding thus represents a significant expansion of the prior cases: It is the first reported decision that has slammed an appellate courthouse door based on an erroneous and single statement in a notice of appeal that the appeal was from an order denying a motion for new trial. Although, as Walkerobserved, Tillery, Shankoffand LaCountdid not engage in extended analysis of the appealability question, those courts undoubtedly were sensitive to the harshness of a dismissal of an appeal based on what was plainly a technical error by counsel and the absence of prejudice to the nonappealing party. See Shankoff, 258 Cal.App.2d at 102 (“The time for appeal from the judgment has passed, if the motion to dismiss be granted, plaintiff will be denied all access to the appellate courts. � Mere error by counsel shall not deprive a party of all appeal in the absence of prejudice to respondent.”). Walkercalled Shankoff’s observation “openly result-oriented.” Although this may be correct, the result there was consistent with the established policies that disfavor procedural defaults and favor the adjudication of appeals on the merits. See, e.g., Cota v. County of Los Angeles, 105 Cal.App.3d 282, 289 (1980) (“The policy of the law is to decide appeals on the merits”). That policy is precisely what underlies rule 1(a)(2)’s requirement to construe notices of appeal “liberally” — a requirement that Walkerhas now rendered a bit more hollow. It remains to be seen whether Walker’s holding will become the settled rule. In May, the California Supreme Court granted review, which, for the moment, has effectively vacated the court of appeal’s opinion. In the meantime, other reviewing courts confronted with the issue will need to choose between Walker’s analysis and the Tillery/Lacount/Shankoffline of cases. Whatever develops, a litigant should avoid the headache — or, put bluntly, his or her lawyer should avoid the malpractice exposure — that Walkerundoubtedly caused, by including the magic word “judgment” in a notice of appeal when that’s what the appellant intends on appealing. That will avoid having to beg the reviewing court to perform a bit of its own “Open Sesame.” Raymond A. Cardozo and Paul D. Fogel are San Francisco-based partners in the appellate group at Reed Smith. Cardozo is the current vice chair of the Bar Association of San Francisco’s Appellate Practice Section and can be reached at [email protected]. Fogel is a member of the California and American Academies of Appellate Lawyers and can be reached at [email protected].com. � Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact News Editor Candice McFarland with submissions or questions at [email protected]or go to www.therecorder.com/submissions.html.

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