Unreported / Non-Citable
Background
Abraham M. Nasiri and Fatemeh Mourshaki sued California FAIR Plan Association on claims including breach of contract and negligence. FAIR Plan obtained summary judgment, and the Orange County Superior Court entered judgment in February 2025. The plaintiffs appealed that judgment in April 2025 in case number G065406, then filed a notice of intention to seek a new trial a few days later.
In May, the plaintiffs filed a notice abandoning their first appeal. The notice did not say whether the abandonment was with or without prejudice. The trial court denied their new trial motion in June. In July, they asked the trial court to reinstate their appeal and, while that request remained pending, filed this second appeal from the same February judgment. Although they said the court had granted reinstatement, the appellate record contained no such order.
FAIR Plan moved to dismiss the second appeal on two grounds: the voluntary abandonment barred another appeal, and the new notice of appeal was untimely. The Court of Appeal ordered that the motion would be decided together with the appeal. Its opinion resolves the case on those procedural grounds rather than reviewing whether summary judgment was substantively correct.
The Court’s Holding
The court held that the first appeal's abandonment barred the second appeal. Under the authorities it applied, an abandonment filed before the appellate record is lodged dismisses the appeal, restores the superior court's jurisdiction, and effectively affirms the judgment. Another appeal requires an abandonment expressly made without prejudice and an application in superior court to set it aside. Because these plaintiffs did not expressly preserve another appeal and did not show an order setting aside the abandonment, their second appeal was ineffectual.
The court independently held that the appeal was untimely. The judgment was entered and served by the clerk in mid-February 2025, but the second notice of appeal was not filed until July. That was beyond the 60-day period triggered by the clerk's service of a file-endorsed copy of the judgment. The court acknowledged that the rules were esoteric and that the plaintiffs might have acted in good faith, but those considerations did not overcome either procedural bar.
The court added that the record would prevent meaningful review even if dismissal were not otherwise required. Most of FAIR Plan's summary judgment motion was missing, including its separate statement, supporting evidence, and reply brief. The plaintiffs' arguments about triable factual issues and misleading evidence therefore could not be reached, and the matter had to be resolved against them. The appeal was dismissed, FAIR Plan was awarded appellate costs, and the plaintiffs' augmentation motion became moot.
Key Takeaways
- An abandonment that is not expressly without prejudice can prevent a later appeal from the same judgment.
- A party seeking another appeal after abandonment must obtain the required order setting aside that abandonment and support its existence with the appellate record.
- The second notice of appeal was independently barred because it was filed after the applicable 60-day deadline.
- An incomplete summary judgment record can prevent appellate review of claimed factual disputes and evidentiary errors.
- The court dismissed the appeal without deciding whether the underlying summary judgment was correct.
Why It Matters
The decision illustrates how abandonment, filing deadlines, and record completeness can each independently end an appeal. Attempting to reinstate an abandoned appeal does not itself establish that a second appeal is effective, particularly when the record contains no order granting relief.
The opinion also shows the practical importance of preserving the complete summary judgment record. The court did not evaluate the plaintiffs' contract, negligence, or evidentiary contentions on their merits; it dismissed on procedural grounds and explained that the missing motion papers would separately foreclose meaningful review.