Appellate Insights

It’s time again for that high-stakes question: is this appealable?  As longtime readers know, failure to timely notice an appeal means permanent and usually irreparable loss of the appeal right.  So twice a year, I run through some examples to illustrate the many ways this can arise.  As always: these answers apply 95% of the time in California state courts, but there are exceptions.

5. Is an order sustaining a demurrer to only some of the claims appealable?  NO.  Appeal lies only from the one final judgment between the parties (with very narrow exceptions).  Discretionary writ review may be available, but the case for urgency must be compelling.

4. How about an order denying a venue transfer?  NO.  There is only one option for review: a petition for writ of mandate filed within 20 days.  (Code Civ. Proc., §400)

3. Is a “Judgment” awarding compensatory damages plus interest and costs appealable, where it finds plaintiff entitled to punitive damages in an amount to be determined at a separate trial?  NO.  Even if captioned a “Judgment,” it plainly does not dispose of all claims between the parties, and leaves a substantial issue to decide.

2. Is an order denying a trial-court petition for writ of mandamus or prohibition (but granting some declaratory relief) appealable?  YES, if it completely disposes of all claims between the parties – again, regardless of whether it calls itself a “Judgment.”

1. Is a post-judgment order granting a new trial appealable?  YES — which should greatly concern the judgment-loser who just secured a new trial!  This party must now notice a “protective” appeal from the judgment it lost, in case the new-trial order is reversed.

►  The practical message:   Every adverse order deserves careful assessment to determine its appealability (or reviewability by writ).  If you cannot reach certainty on the appealability question, call someone who can!