|April 23, 2014|
Previously published on April 2014
It's April, and time for my semi-annual installment of "Is This Appealable?" -- a selection of the adverse orders that trial lawyers ask me about most often. As usual, these answers apply 95% of the time in California state courts; there are usually exceptions, and every adverse order deserves careful assessment to determine its appealability (or reviewability by writ).
5. 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.
4. Is an order compelling arbitration appealable?
NO. Generally the parties must arbitrate, with any appeal lying from a later judgment confirming the arbitration award. (Civ. Proc., §1294(d)) But there is authority for attacking the order via writ petition.
3. Is an order requiring someone to sign a settlement agreement appealable?
YES, ironically. A recent case holds such an order is a mandatory injunction. All mandatory injunctions are appealable.
2. Is an order denying summary judgment appealable?
NO, it is reviewable only by petition for writ of mandate filed within 20 days. (Code Civ. Proc., §437c(m)(1))
1. Is an order granting summary judgment appealable?
NO! Only the separate Judgment that shortly follows is appealable. If the party that won summary judgment does not submit a Proposed Judgment, the aggrieved party should do so, in order to have something to appeal from. Some appellate courts will "treat" a prematurely filed appeal as having been taken from the subsequent judgment, if there is one. But many will dismiss such an appeal without prejudice -- a hassle you do not need.
The practical message: Whenever you suffer an important loss, study the statutes controlling appealability, as well as the particular statute controlling the motion or application, and relevant cases. If you cannot reach absolute certainty on whether it's appealable, call someone who can, because the stakes are “do-or-die.” The same goes for a big pre-judgment win, since you should always know your opponents' options better than they do.