Burnham Brown wins dismissal of appeal by “phantom” plaintiff

March 2017

By: Patrick M. Callahan

Senior Counsel Patrick M. Callahan convinced the Court of Appeal for the Sixth Appellate District to dismiss the appeal of a plaintiff who sought reinstatement of her complaint after it was dismissed in the trial court. The plaintiff missed the initial case management conference (CMC), and also an Order to Show Cause hearing on the issue whether the complaint should be dismissed for her non-appearance. The plaintiff waited more than eight months after the CMC to inquire into the status of her complaint, only to learn that it had been dismissed six months earlier. Plaintiff then filed a series of three motions, citing the same statute and the same facts, but on different legal theories, seeking to overturn the dismissal, all of which were successfully opposed by Callahan. The crux of plaintiff’s argument was to blame the court for sending notices about the case to the wrong address.


After the trial court denied plaintiff’s third motion, she filed an appeal, citing the same set of facts and law that she had relied on in the trial court. Callahan argued that the orders from which the appeal was taken were not appealable orders and that the appeal should be dismissed. In a footnote, the court said it would have been assisted by plaintiff’s responses to these arguments, but she did not file a reply brief. The court of appeal agreed with the defendants’ arguments and dismissed the appeal. The court of appeal’s opinion may be found below.


Patrick Callahan has more than 30 years’ experience in both the trial and appellate courts, representing companies, corporations, and individuals in civil litigation in both New Jersey and California. He may be reached via email at pcallahan@burnhambrown.com or by phone at 510-835-6802.

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