Legal Question in Appeals and Writs in California

The best advice is to appeal from both. Depending on the time frame you can name both in the notice of appeal. It is impossible to determine appealability without knowing the context. If the minute order did not require the preparation of a final order it is probably the appealable order. But my advice is to be safe and appeal from both.

Appellate law is tricky, in that it is riddled full of exceptions. The general rule is that if the order is in minutes, you appeal from the minutes, but if the minutes direct the preparation of a formal order, then you do not have an appeal until the court signs and enters the formal order.

I believe that both of the previous answers are incorrect. I had an appellate case that deals directly with this issue. "Minute Orders" are not the final order, only the signed order by the judge. The judge can actually change his mind and enter a different order at any time prior to the order being signed by the judge. The correct procedure is to prepare a written order for the judges signature and then appeal from the order when it is entered. You can file your notice of appeal, however, the appeal does not begin until the order is signed and entered by the judge. I suggest that you retain an attorney to handle the appeal. The appeal rules are different that superior court rules and most attorneys do not handle appeals. You do not need an attorney in your county as court appearances and hearings are not necessary. You may call me for a free consultation. Good Luck, Pat McCrary

Mr. McCary is dead wrong. The date of a minute order can be the trigger for the notice of appeal deadline if the order does not direct a party to prepare a formal order. See Rule of Court 8.104(c)(2). That there was later a formal signed order does not necessarilly change the fact that the first minute order starts the clock; the rules require that the notice of appeal be filed within the earliest possible deadline (see Rule of Court 104(a)).

That all being said, that the minute order was not served on the parties might mean that you have 180 days to file the notice of appeal (Rule of Court 104(a)(3)).

Next, I concur that where there is ambiguity, you should identify both the minute order and the formal order in the notice of appeal, time permitting, or file two notices. In practical terms, it is the formal order that the court of appeal will look at to determine what the trial court did.

Finally, your posting makes a big assumption - that the order is, itself, an appealable order. You do not identify the nature of the order so it is impossible to tell, but most interlocutory orders are not directly appealable, and some may only be challenged by a writ petition.

I am a certified appellate law specialist. If you are considering retaining an attorney, please see my website at www californiafamilyappeals com

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