Abandonment Issues: Avoiding a Common Mistake That Will Result in Your Post-Trial Appeal Being Dismissed

This article highlights a common mistake that will likely result in your post-trial appeal being dismissed. Specifically, the appeal will be dismissed as premature if the final order/judgment does not resolve all claims against all parties in the case, including claims that were abandoned prior to trial pursuant to Eighth Judicial District Court Rule (EDCR) 2.67.1

THE PROBLEM: Failing to Address Abandoned Claims in the Post-Trial Order/Judgment

EDCR 2.67 requires parties in the Eighth Judicial District Court to file a pretrial memorandum that lists, among other things, “all claims or defenses to be abandoned.” EDCR 2.67(b)(4). There are many practical and strategic reasons for abandoning a particular claim before trial. For example, a party might abandon a claim that was pled in the alternative, such as an unjust enrichment claim that was pled in the alternative to a breach of contract claim. A party might also decide to abandon a particular claim to focus on more important claims that are more likely to succeed. Whatever the reason, it can be easy to forget about the claims that were abandoned pre-trial when it comes time to draft the final post-trial order/judgment.

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