California Code of Civil Procedure 1049- Interpretation

In California (unlike some other jurisdictions) an action is deemed pending until its final determination on appeal, or until the time for appeal has passed, or the judgment satisfied. Code of Civil Procedure section 1049 provides: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." (See also, Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936-937 "Although California law is settled that pending appeal a trial court judgment is not final and will not be given res judicata effect . . . once the appeal is settled favorably to the plaintiff and thereafter dismissed, the Restatement analysis and reason itself dictate that the trial court judgment reemerges with sufficient finality to permit the application of collateral estoppel.".) As Witkin explains the distinction, a "judgment or order may be final in nature, but it does not become res judicata until it is final in the other sense of being free from direct attack. Hence, while an appeal is pending or, though no appeal has yet been taken, the time for appeal has not expired, the judgment is not conclusive." 7 Witkin, California Procedure (4th ed. 1997) Judgment, section 307, page 857. In Lamborn v. Lamborn (1923) 190 Cal. 794 214 P. 862, the Supreme Court addressed the question of whether a trial court could enter a support order after a decree of divorce had become final. There, the wife moved for an order of support to cover the attorneys' fees and costs she had incurred in the divorce action. The husband opposed the motion, relying on section 1049 of the Code of Civil Procedure. That statute provides: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." The husband argued that because the time to appeal the divorce decree had expired in accordance with Code of Civil Procedure section 1049, the trial court had no jurisdiction to entertain the motion for support. the trial court rejected the husband's argument and granted the motion. On appeal, the Supreme Court agreed, stating: "It is true that an ordinary action is deemed to be pending only until the appeal from the judgment is determined or until the time for an appeal has passed (sec. 1049, Code Civ. Proc.), but this general provision of the statute with reference to ordinary judgments is modified in the case of divorce actions by the provisions of the code authorizing the modification of an award for alimony at any time after the final decree is entered." (Lamborn v. Lamborn, supra, 190 Cal. at pp. 795-796)