The basics of California Appeals — two not-so-simple rules (Part 2)

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

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By Jeffrey I. Ehrlich, 2010 | Download .doc

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How to comply with Rule 1, Step 1— Know what to appeal

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy.” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)

The flip side of the one-final judgment rule is Rule 1, above — that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”)§ 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)

The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.
There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.

The most common appealable orders listed in section 904.1 are these:

  • From a judgment
  • From an order after final judgment (such as an order awarding attorney’s fees post-trial)
  • From an order granting a new trial, or denying a motion for judgment notwithstanding the verdict
  • From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction
  • From a sanctions order directing the payment of more than $5,000
  • From an order granting or denying an “Anti-SLAPP” motion under Code Civ. Proc. section 416.26
  • From an order appointing a receiver
  • From an order granting a right-to-attach order or discharging or refusing to discharge an attachment.

Note that the term “judgment” in section 904.1 includes an appealable order. (See CRC, Rule 8.104(f).)  An order of dismissal, for example, is appealable when it is in writing, signed by the court, and filed in the action. (Code Civ. Proc. § 581d.) But an order sustaining a demurrer without leave to amend is not an appealable order. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)  Rather, the appeal lies from the order of dismissal made following the order sustaining the demurrer. (Id.)  “But when the trial court has sustained a demurrer to all of the complaint’s causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 544.) Courts generally only invoke this rule to save a premature appeal. But it could conceivably be used to argue that an appeal was untimely in a case where the only order issued was the order sustaining the demurrer, and no dismissal was entered.

Similarly, a statement of decision is generally not an appealable order. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) This is because courts generally embody their final rulings in orders or judgments, not a statement of decision. (Id.) But if a written statement of decision is signed and filed, and satisfies the requirements of Code Civ. Proc. § 581d, it can be treated as appealable order if no further order or judgment follows. (Id.)

The list of appealable orders in section 904.1 is not exhaustive, unfortunately. The Family Code and the Probate Code have specific provisions that make certain orders appealable. So too does the Code of Civil Procedure, such as section 1294, which makes orders denying or dismissing a petition to compel arbitration, or dismissing a motion to confirm, correct or vacate an arbitration award appealable.

There are also common-law rules that make some orders appealable. For example, a “death knell” order that denies certification of a class action, or that disposes of an entire class action (such as an order sustaining a demurrer to class allegations) is deemed “final” and is immediately appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 184 [denying class certification]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rprt. 724, 728 [same]; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957, 93 Cal.Rprt.2d 413, 416, fn. 1 [demurrer to class allegations].) The death-knell doctrine is therefore deemed part of the one-final judgment rule, not an exception to it.

In general, the law recognizes two general exceptions to the one final judgment rule: (1) a “collateral” final judgment or order, or (2) a judgment final as to a party. (“Civil Appeals” § 2.76.) The latter exception occurs frequently — when one party is simply dismissed from a case that goes on as the remaining parties. If you are the plaintiff and one of the defendants is dismissed, you must appeal at the time; not from the ultimate “final” judgment.

The definition of a “collateral order” is a bit more involved, and beyond the scope of this presentation. In general, it requires that three conditions be satisfied: (1) the order directs the performance of an act or the payment of money; (2) the order involve an issue that is wholly collateral to the main issue in the case; and (3) as to that collateral issue, the order is final. (Civil Appeals, § 2.77.)

Ultimately, every time an order is issued, the trial lawyer must consider whether it could be considered “final” and appealable, or within an exception to the one-final judgment rule, or subject to review by statutory writ.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

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