Can I Appeal That?

One of the first questions a lawyer gets asked when telling a client about a loss or adverse ruling is often “Can we appeal?”

This not always easy to answer. The following a brief overview of appealability under the California Code of Civil Procedure.

This post addresses ordinary appeals in the Court of Appeal and won’t address the procedures related to writs, which are a whole other bundle of complications. Every case is different and an appellate attorney should be consulted before an appeal is pursued.

Is the Decision Appealable?

The question that must answered is: is the trial court’s decision appealable? If there is no appealable judgment or order, the court of appeal cannot entertain an appeal and any attempted appeal will ordinarily be dismissed.

With certain exceptions, the only decisions that are appealable are judgments or post-judgment rulings. A judgment can be the result of a jury trial, court trial or a dispositive motion such a motion for summary judgment/adjudication, demurrer or motion to dismiss.

It is important to note that the order granting summary judgment or sustaining a demurrer is not itself appealable and the party wishing to file an appeal should wait until the subsequent judgment is filed.

Furthermore, not even all judgments are appealable. With certain exceptions, a non-final or “interlocutory” judgment will not be appealable. Cal. Code Civ. Proc. sec. 901, et seq. A general list of appealable judgments is found at Cal. Code of Civ. Proc. section 904.1.

Finally, it’s important to remember that cases in limited jurisdiction can only be appealed to the Appellate Division of the Superior Court rather than the Court of Appeal. Cal. Code Civ. Proc. sec. 901.1(a)(1)(C)

There other complications and exceptions, but those are the basics.

Post-Judgment Rulings
In addition to judgments, many post-judgment rulings may be appealed. These can include orders related to costs and attorney’s fees and enforcement/stay orders.

An granting a motion for new trial may be appealed, but a denial of a motion for a new trial may only be appealed indirectly buy appealing the underlying judgment.

A motion denying a verdict notwithstanding the verdict (JNOV) may be directly appealed. However, a grant of JNOV may only be appealed by appealing the subsequent judgment.

These are just a few of the common post-judgment issues that may come up when assessing the feasability of appeal.

Other Appealable Orders
There are a small number of other pre-judgment orders that may be directly appealed even before a final judgment on a case.

Perhaps the most common appealable pre-trial order in civil litigation is an order denying a motion/petition to compel arbitration. By contrast, a grant of an petition/motion to compel arbitration cannot be directly appealed and therefore can only be appealed if the party challenging the order suffers and adverse result int he arbitration and then appeals from the resulting judgment.

Another exception are sanctions orders exceeding $5,000.

There are other exceptions and each type of order should be researched on its own with the understanding that most interlocutory order are not directly appealable.

Again, there are a myriad of possible complications and nothing here should be taken as legal advice. As always, you should consult an attorney and not rely on the internet for important decisions that may affect your legal rights.

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