This Post is to guide Homeowners in deciding whether to appeal their cases to the higher courts upon judgment or order.
The concepts of appealability and reviewability are constitutional limitations on the Court’s power to hear cases. More precisely, appealability rules act to limit the kinds of cases which may be heard by the Court of Appeals. Reviewability rules, on the other hand, limit the issues which the Court may determine once the case is before the Court. Article VI, § 3(b) of the State Constitution prescribes what kinds of orders are appealable to the Court, and article VI, § 3(a) states that in most cases “the jurisdiction of the Court of Appeals shall be limited to the review of questions of law.”
In addition to the jurisdictional requirements discussed above for appeals as of right and motions for leave to appeal, certain other appealability requirements must be met.
1. Appropriate Court
Action must originate in an appropriate court. For example, the Court lacks jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division where the appeal to that court was from a judgment or order entered in an appeal from a third court (Matter of Thenebe v Ansonia Assocs., 89 NY2d 858). This jurisdictional problem will arise when an action originates in a court other than Supreme Court, County Court, Surrogate’s Court, Family Court, Court of Claims or an administrative agency or an arbitration. The motion will be dismissed regardless of whether the Appellate Division order is final.
Note: The Court does not have jurisdiction to entertain a motion for leave to appeal from a determination of a court other than the Appellate Division, except in the circumstances specified in CPLR 5602(a)(1)(ii). Regarding appeals as of right, see CPLR 5601.
a. CPLR 5511 states that only an aggrieved party may appeal (see, Hecht v City of New York, 60 NY2d 57, 61). A party may appeal if the order appealed from does not grant complete relief to it. A party which is granted complete relief but is dissatisfied with the court’s reasoning is not aggrieved within the meaning of CPLR 5511 (see, Matter of Sun Co. v City of Syracuse Indus. Dev. Agency, 86 NY2d 776; Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 545).
b. No appeal lies from an Appellate Division order dismissing an appeal from a determination entered upon a default judgment (CPLR 5511; Matter of Lizette Patricia C., 98 NY2d 688).
c. Where the Appellate Division reverses a trial court’s judgment and orders a new trial limited to the issue of damages unless plaintiff stipulates to a reduction of damages, and plaintiff so stipulates, plaintiff is not aggrieved by the Appellate Division order (see, Whitfield v City of New York, 90 NY2d 777, 780 n *; see also, Smith v Hooker Chem. & Plastics Corp., cross mot for lv dismissed 69 NY2d 1029). Similarly, where the Appellate Division reverses and grants a new trial on the issue of damages unless defendant stipulates to an increase in damages and defendant stipulates, defendant’s attempt to appeal to the Court and to argue liability issues will be dismissed for lack of aggrievement (see, Whitfield, supra; see also, Sharrow v Dick Corp., mot to dismiss appeal granted 84 NY2d 976). Note that a party who, as a result of a conditional order, stipulates at the trial or appellate court to a different amount of damages in lieu of a new trial on a cause of action forgoes review of other issues raised by that order, including those pertaining to any other cause of action and, therefore, is not a party aggrieved (see, Batavia Turf Farms v County of Genesee, lv dismissed 91 NY2d 906). Only the non-stipulating party may appeal or move for leave to appeal (Whitfield, supra).
3. Finality — covered in detail in Section VI of this outline.
4. Miscellaneous Appealability Problems
a. Dual Review — Where the same party both appeals to the Appellate Division and appeals to the Court of Appeals, the appeal to the Court will be conditionally dismissed. Where the same party both appeals to the Appellate Division and moves for leave to appeal to the Court of Appeals, the motion will be dismissed outright. Dual review is generally not permitted (Parker v Rogerson, 35 NY2d 751, 753; see also, CBS Inc. v Ziff Davis Pub., lv dismissed 73 NY2d 807). However, where different parties pursue different avenues of appeal or motion before the Court will be permitted to continue (Defler Corp. v Kleeman, 18 NY2d 797).
b. Appealable paper — An appeal will be dismissed where the improper paper is sought to be appealed.
i. No order or judgment — Where appellant/movant seeks to appeal from something other than an order or judgment, the appeal/motion will be dismissed (Matter of Sims v Coughlin, appeal dismissed 86 NY2d 776 [decision]; Matter of Abdurrahman v Berry, lv dismissed 73 NY2d 806 [letter]).
ii. Subsequent Supreme Court order or judgment — CPLR 5611 reads in part “If the Appellate Division disposes of all the issues in the action its order shall be considered a final one, and a subsequent appeal may be taken only from that order and not from any judgment or order entered pursuant to it” (see, American Acquisition Co. v Kodak Electronic Printing Sys., 87 NY2d 1049).
iii. Order of individual Appellate Division Justice — No appeal lies from an order of an individual Justice of the Appellate Division (People ex rel. Mahler v Jablonsky, appeal dismissed 82 NY2d 919).
iv. The finality of an Appellate Division order dismissing an appeal to that court is determined by an examination of the finality of the underlying order (Langeloth Found. v Dickerson Pond Assocs., lv dismissed 74 NY2d 841).
v. No civil motion for leave to appeal or appeal as of right lies directly from the order of the Appellate Term of Supreme Court (Williamson v Housing Preservation and Dev. of City of New York, lv dismissed 82 NY2d 919).
c. Dismissal of Prior Appeal for Failure To Prosecute — A prior dismissal of an appeal for failure to prosecute is a determination on the merits and acts as a bar to a subsequent appeal raising the issues that could have been raised on the prior appeal (see, Bray v Cox, 38 NY2d 350). Thus, the subsequent motion/appeal may be dismissed (see, id.; compare Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Faricelli v TSS Seedman’s, 94 NY2d 772 [Appellate Division has discretion to entertain appeal notwithstanding dismissal of prior appeal for failure to prosecute]).
d. Criminal Appeals — Appeals in criminal cases must be taken pursuant to the Criminal Procedure Law, not CPLR 5601 or 5602 (Matter of Newsday, Inc. 3 NY3d 651 [newspaper’s motion to intervene and obtain access to record in criminal case]; People v Blake, appeal dismissed 73 NY2d 985 [CPL 450.15, 460.15 application]; People v Dare, appeal dismissed 74 NY2d 707 [application for writ of error coram nobis]).
e. Corporation Appearance — CPLR 321(a) dictates that a motion or appeal by a corporate party must be filed by an attorney.
f. Mootness — Where the issues presented are no longer determinative of a live controversy, the Court will not entertain an appeal or motion for leave to appeal. The Court cannot entertain the motion or appeal because it cannot give advisory opinions (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714). However, the Court may entertain an appeal or motion when each of the three prongs of the mootness exception is satisfied: “(1) a likelihood of repetition * * *; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e. substantial and novel issues” (id. at 714-715).
Once it is determined that an order is appealable, a litigant must consider which issues and orders that arose in the litigation are reviewable by the Court of Appeals.
1. Preservation — Issues Reviewable
a. The Court of Appeals’ power to review lower court rulings made on motions, applications and points of evidence is, in part, limited by statutes and case law requiring that appropriate objections be registered below as a prerequisite to appellate review (see, CPLR 4017, 4110-b and 5501[a] and ). The Court will, on its own, determine whether an issue has properly been preserved below, whether or not the parties raise the question of preservation (see, Halloran v Virginia Chems., 41 NY2d 386, 393). Counsel bears the responsibility of showing the Court where each issue raised has been preserved in the record.
b. Differences in Appellate Division and Court of Appeals review
The Appellate Division may reach questions of trial error, even if unpreserved, in an exercise of its “interest of justice” jurisdiction (see, Martin v City of Cohoes, 37 NY2d 162, rearg denied 37 NY2d 817, on remand 50 AD2d 1035, appeal dismissed 39 NY2d 740, lv denied 39 NY2d 910). The Court of Appeals, on the other hand, generally may only review questions of law and, therefore, may not review unpreserved error even if the Appellate Division has chosen to do so (see, Brown v City of New York, 60 NY2d 893, 894).
c. Preservation of legal issues and theories
i. As a general matter, appellate courts are reluctant to review legal arguments raised for the first time on appeal. Several policy reasons underlie this rule, such as avoiding unfairness to the other party, giving deference to the lower courts and encouraging the proper administration of justice by demanding an end to litigation and requiring the parties and trial courts to focus the issues before they reach the Court of Appeals (Bingham v New York City Trans. Auth., 99 NY2d 355, 359 ).
Under appropriate circumstances, however, the Court of Appeals may entertain new legal arguments and theories raised on appeal. Those very limited circumstances include: (1) new arguments based on a change in statutory law while the appeal is pending (see, Post v 120 East End Ave. Corp., 62 NY2d 19, 28-29); (2) where the new argument could not have been obviated or cured by factual showings or legal countersteps had the arguments been tendered below (People ex rel. Roides v Smith, 67 NY2d 899, 901); (3) questions of pure statutory interpretation (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 250). These “exceptions” are narrowly construed.
ii. The general rule requires that constitutional questions be raised at the first available opportunity as a prerequisite to review in the Court of Appeals (see, e.g., Matter of Barbara C., 64 NY2d 866, 868). There is some indication that the Court may make an exception to this doctrine and examine a constitutional issue raised for the first time in the Court of Appeals if the issue implicates grave public policy concerns (see, Park of Edgewater v Joy, 50 NY2d 946, 949, citing Massachusetts Natl. Bank v Shinn, 163 NY 360, 363).
d. Preservation in the administrative agency context
The Court’s reluctance to review new legal arguments is equally applicable in the administrative agency context for policy reasons similar to those discussed above. Thus, arguments which were not raised by a party at the administrative level are considered unpreserved and not reviewable by the Court of Appeals, subject to very limited exceptions (see, Matter of Crowley v O’Keefe, mot to dismiss appeal granted 74 NY2d 780; Matter of Samuels v Kelly, lv denied 73 NY2d 707).
2. CPLR 5501(a) — Review of Prior Nonfinal Orders and Determinations
a. CPLR 5501(a) provides that an appeal from a final judgment brings up for review, among other things:
i. any nonfinal judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal (CPLR 5501[a]),
ii. any order denying a new trial or hearing which was not previously reviewed by the court to which the appeal was taken (CPLR 5501[a]), and
iii. any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, any charge to the jury, or failure to charge as requested by the appellant, to which the appellant objected (CPLR 5501[a]).
b. Note that CPLR 5501(a)(1), which applies to prior nonfinal orders and judgments, contains the “necessarily affects” requirement. CPLR 5501(a)(3), which applies to trial rulings, however, does not.
c. For an in-depth discussion of the “necessarily affects” requirement, see Section VII of this outline.
3. Scope of Review
Once it is determined which orders, determinations, and issues are reviewable, the scope of the Court’s review must be considered.
a. Limited to questions of law
As noted earlier, the State Constitution limits the Court’s review powers to questions of law. Questions of fact are not reviewable except in:
i. death penalty cases (CPL 470.30);
ii. Commission on Judicial Conduct matters (see, e.g., Matter of Edwards, 67 NY2d 153);
iii. cases where the Appellate Division reverses or modifies and finds new facts, in which case the Court’s review power is limited as discussed further below (CPLR 5501[b]); and
iv. defamation cases involving a public figure defendant — where the issue concerns whether plaintiff has proven the essential element of actual malice, the Court has a constitutional duty to review the evidence and to “exercise independent judgment to determine whether the record establishes actual malice with convincing clarity” (Prozeralik v Capital Cities Communications, 82 NY2d 466, 474-475, quoting Harte-Hanks Communications v Connaughton, 491 US 657, 659).
b. Questions that are never reviewable
i. An Appellate Division determination whether the trial judge correctly decided a CPLR 4404(a) motion to set aside the verdict as “contrary to the weight of the evidence” is not reviewable (Levo v Greenwald, 66 NY2d 962; Gutin v Frank Mascali & Sons, Inc., 11 NY2d 97, 98-99 [emphasis added]).
However, where a jury verdict has been set aside on the ground that, as a matter of law, the verdict is not supported by sufficient evidence, that determination is reviewable. The relevant inquiry is whether there is any “valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499). Where it is not clear from the Appellate Division writing whether the Appellate Division has set aside a verdict on sufficiency of evidence or weight of evidence grounds in a jury tried case, examine the court’s corrective action. New trial ordered — weight; dismissal of complaint — sufficiency (see, id. at 498). The foregoing analysis cannot be used in bench trial cases because the Appellate Division can render judgment for the appealing party as a matter of fact without the need for a new trial. When, in a jury case, the Appellate Division reverses a judgment entered on a plaintiff’s verdict, on both sufficiency and weight of the evidence grounds, the Court can review whether the legal sufficiency ruling was correct. If the Court disagrees with the Appellate Division and concludes that the verdict is supported by legally sufficient evidence, the Court cannot reinstate the judgment entered on the verdict; instead, it must order a new trial because it cannot disturb the Appellate Division’s weight of evidence determination (Sage v Fairchild-Swearingen, 70 NY2d 579, 588).
ii. A determination of excessiveness (or inadequacy) of the jury’s verdict (Rios v Smith, 97 NY2d 647, 654; Woska v Murray, 57 NY2d 928; Zipprich v Smith Trucking Co., 2 NY2d 177, 188).
iii. An Appellate Division determination to reverse a judgment in a civil action on the basis of unpreserved legal error (Brown v City of New York, 60 NY2d 893). The Court of Appeals has no power to review either the unpreserved error or the Appellate Division’s exercise of discretion in reaching the issue (see, Elezaj v Carlin Constr. Co., 89 NY2d 992, 994).
c. Limited Review
i. Findings of fact that are affirmed by the Appellate Division are only reviewable to determine if there is evidence in the record to support them (Cannon v Putnam, 76 NY2d 644, 651; Morgan Servs. v Lavan Corp., 59 NY2d 796, 797).
ii. In situations where the Appellate Division reverses or modifies and expressly or impliedly finds new facts, the Court of Appeals can determine which of the findings more nearly comports with the weight of the evidence (CPLR 5501[b]; Matter of Y.K., 87 NY2d 430, 432; Loughry v Lincoln First Bank, N.A., 67 NY2d 369, 380).
iii. Provided the lower courts had the power to exercise discretion (Brady v Ottaway Newspapers, 63 NY2d 1031), the Court of Appeals will not interfere with the exercise of that discretion absent an abuse (Herrick v Second Cuthouse, 64 NY2d 692). However, an issue of law will be presented where the Appellate Division in exercising its discretion expressly fails to take into account all the various factors that are properly entitled to consideration (Varkonyi v Varig, 22 NY2d 333, 337). In such cases, the Court can set out the proper factors and, if judgment cannot be rendered as a matter of law, remit the case to the Appellate Division to exercise its own discretion on the basis of all the relevant factors (id. at 338).
Consider these facts: The federal district court grants the defendant’s motion to dismiss and states that the court may amend its order with a more specific statement of grounds for its decision.
However, the court never amends its order. Is the order appealable?
No, answered the 9th U.S. Circuit Court of Appeals in National Distribution Agency v. Nationwide Mutual Insurance Company, 117 F.3d 432 (9th Cir. 1997). The court said: “A district court ruling is not final if the court reserves the option of further modifying its ruling.” Therefore, the plaintiff’s appeal is dismissed.
This is a specific application of the general rule that to invoke federal-appellate jurisdiction, the appellant must timely appeal from an appealable judgment. Price v. Seydel, 961 F.2d 1470, 1473 (9th Cir. 1992). Stating that rule is simple. Applying it, however, presents formidable challenges for the appellate practitioner. Virtually every aspect of the rule is subject to interpretation and debate, and there is little leeway for error. Had the plaintiff in National not appealed, and the order later was deemed a final judgment, the plaintiff’s opportunity for appellate review would have been lost.
In determining whether a judgment or an order is appealable, the practitioner should consider
the following issues:
Is the challenged judgment or order appealable by statute?
Federal appeals courts (other than the Federal Circuit, which has unique jurisdiction) have jurisdiction of appeals from “all final decisions of the district courts.” 28 U.S.C. Section 1291. In addition, they have
jurisdiction over appeals from specified interlocutory orders in injunction, receivership and admiralty cases. 28 U.S.C. Section 1292(a). Appellate courts also have discretion to hear appeals from interlocutory orders when the district court determines, in its discretion, that the order involves a controlling question of law and immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. Section 1292(b).
When a case involves more than one claim or multiple parties, the district court also has the option of entering judgment on all or some of the claims or parties. That judgment is immediately appealable if the district court expressly determines there is no just reason for delay. Fed. R. Civ. P. 54(b).
If the appeal is from a judgment, is the judgment final?
For a judgment to be final — absent any of the exceptions noted above — it must end the litigation on the merits for all claims and all parties.
FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 273-74
(1991). For example, a judgment is not final if the court has yet to resolve a claim for prejudgment interest. Pace Communications Inc. v. Moonlight Design Inc., 31 F.3d 587, 591 (7th Cir. 1994). On the other hand, a judgment is final even though the court has not yet determined costs. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988).
Moreover, the court’s ruling itself is not an appealable final judgment. The clerk is supposed to enter judgment as a separate document. Fed. R. Civ. P. 58. The mere fact that the court added a seemingly final and dispositive phrase such as “judgment accordingly” to its findings of fact and conclusions of law does not make the order a final judgment.
Whether a ruling is final depends ultimately on its substance. Thus, a ruling entitled a “judgment” may not be final for purposes of appeal where further issues remain to be resolved. Zucker v. Maxicare Health Plans Inc., 14 F.3d 477, 483 (9th Cir. 1994). But a ruling entitled an
“order” may be a final judgment for purposes of appeal where there is no substantive issue left for the court to resolve. United States v. Lee, 786 F.2d 951, 955-56 (9th Cir. 1986).
Although the appeals courts will apply a common-sense interpretation to the finality requirement, Sutton v. Earles, 26 F.3d 903, 906 n.1 (9th Cir. 1994), the parties cannot stipulate to appellate jurisdiction where there is none, Dannenberg v. Software Toolworks Inc., 16 F.3d 1073, 1076-78 (9th Cir. 1994), nor can they create appellate jurisdiction by dismissing unresolved claims and reserving the option of litigating them at some future time, Cheng v. Commissioner, 878 F.2d 306, 310 (9th Cir. 1989)
The finality requirement has only rare exception, usually involving cases in the “‘twilight zone’ of finality.” Gillespie v. United States Steel Corp.
, 319 U.S. 148, 152-54 (1964). In extraordinary circumstances, a federal appeals court will consider an appeal from a seemingly nonappealable ruling where the ruling is “marginally final,” involves an issue of “national significance” and has been “fully briefed and argued.” Service Employees Int’l Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1350 (9th Cir. 1995)
Is the appeal timely?
If notice of appeal is filed either too early or too late, and no
exception applies, the appeal is invalid and cannot be heard. Generally, the prescribed time within which to file notice of appeal is 30 days after entry of the judgment or other appealable order. If the United States or one of its officers or agencies is a party, the prescribed time is 60 days. Fed. R. App. P. 4(a)(1).
Time to appeal is extended to accommodate certain post-judgment proceedings that may affect the judgment. If any party timely files one of several specified post-judgment motions, including a motion for new trial or for judgment as a matter of law, the time for all parties to appeal begins to run from the entry of the order disposing of the post-trial motion. Fed. R. App. P. 4(a)(4). The district court may deem a motion for attorney fees to be in the nature of a motion to amend the judgment and
thus extend the time for appeal. Fed. R. Civ. P. 38. If the post-judgment motion is not timely, the time to appeal is not extended. Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664, 666 (9th Cir. 1982).
An appeal filed while one of the specified post-judgment motions is pending is held until the motion is decided; then the appeal becomes effective. Leader Nat’l Ins. Co. v. Industrial Indem.
Ins. Co., 19 F.3d 444, 445 (9th Cir. 1994). When it becomes effective, that appeal still applies only to the original judgment; if the appellant intends to challenge the ruling on the postjudgment motion or any modifications to the judgment, the existing notice of appeal must be amended. Fed. R. App. P. 4(a)(4).
There is some leeway on either side of the prescribed time period for appeal. A notice of appeal is treated as filed on the date of entry, if it’s filed before entry of the appealable order or judgment but after the district court-announced decision. Fed. R. App. P. 4(a)(2). This is a relatively recent liberalization in federal appellate procedure. Previously, a premature appeal was invalid and a new notice of appeal had to be filed at the appropriate time. Schroeder v. McDonald, 55 F.3d 454, 458-60 (9th Cir. 1993). However, even under the present rule, a notice of appeal remains invalid if it’s filed before the court announces the decision that will ripen into an appealable judgment. Kennedy v. Applause Inc., 90 F.3d 1477, 1482 (9th Cir. 1996).
On a motion filed within 30 days after the filing deadline, and on a showing of excusable neglect or good cause, the district court may extend the time for filing a notice of appeal up to 30 days or 10
days from the order’s entry date, whichever occurs later. Fed. R. App. P. 4(a)(5).
The courts abide by strict standards for excusable neglect in failing to file a timely notice of appeal. Oregon v. Champion Int’l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982). An extension to appeal will be granted only in “extraordinary circumstances.” National Industries Inc. v. Republic
Nat’l Life Ins. Co., 677 F.2d 1258, 1264 (9th Cir. 1982). One such circumstance is provided by express rule. The court may reopen the appeal time for 14 days if the aggrieved party files a motion within 180 days of the judgment’s entry or within seven days of receiving notice of the judgment’s entry, whichever is earlier – and if the district court finds that the party didn’t receive notice of the judgment’s entry within 21 days, and no party would be prejudiced. Fed. R. App. P. 4(a)(6)
Yet another wrinkle in the rules for timely filing of federal appeals is that the time begins to run only upon entry of judgment. Fuller v. M.G. Jewelry
, 950 F.2d 1437, 1441 n.4 (9th Cir. 1991). Nevertheless, absent objection, the court can consider an appeal from a judgment that has been
rendered but not entered. Allah v. Superior Court of California, 871 F.2d 887, 890 n.1 (9th Cir. 1989). The appellate court will not engage in the “pointless exercise of dismissing the appeal and waiting for the district court to enter a separate judgment.” Vernon v. Heckler , 811 F.2d 1274, 1276-77 (9th Cir. 1987).
As National demonstrates, despite potential loopholes in the rules of appealability, the practitioner cannot count on extraordinary exceptions or discretionary relief to salvage an unauthorized or untimely appeal. To ensure a timely and valid appeal in federal court, the practitioner must carefully monitor the district court’s actions, diligently follow the rules, and count the days precisely.
A fundamental rule of appellate law is that an appeal only lies from an order or judgment that is appealable. An appellate court does not have jurisdiction to hear the case unless there is an appealable order or judgment.
The following is an overview of appeal-able orders and judgments under California law. Note that judgments and orders issued in federal courts are subject to different rules.
Right to Appeal is Statutory
The right to appeal in California is wholly statutory.
Thus, no appeal may be taken unless there is a statute that expressly allows the appeal. Most of the appeal-able orders and judgments are listed in Code of Civil Procedure §904.1. Some orders are made
appealable by other statutes as well.
The most common type of appealable order is a judgment.
See Code Civ. Proc. §904.1(a)(1). Judgments are generally appealable, except for most interlocutory judgments, judgments of contempt
(they may be reviewed by writ), and judgments in limited civil cases
(appeal is to the superior court).
One Final Judgment Rule
Under the “one final judgment” rule, an appeal from a judgment
can only be from a single, final judgment in the action. The rule is codified in Code of Civil Procedure section 904.1(a), which authorizes an appeal “[f]rom a judgment, except … an interlocutory judgment.” The California Supreme Court has held that this means that the appeal must be “from a judgment that is not intermediate or nonfinal but is the one final
judgment.” Morehart v. County of Santa Barbara, 7 Cal.4th 725, 741 (1994). “Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a).” Id. Conversely, a “judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily „interlocutory‟ … and not yet final, as to any parties be
tween whom another cause of action remains pending.” Id.
The reason for this rule is to avoid multiple appeals in the same case, which places a huge burden on the courts and the parties.
See id. at 741 n.9. Moreover, if the parties have to wait until a
final judgment is entered, “the trial court may completely obviate an appeal by altering the rulings from which an appeal would otherwise have been taken.” Id. It also gives the appellate court a more comprehensive record. Id
To determine if a judgment is final, courts look to the substance and effect, rather than the form or title. The judgment is considered
final when it ends the litigation between the parties on the merits of the case, and nothing is left to be done other than to enforce the judgment.
See San Joaquin County Dept. of Child Services v. Winn, 163 Cal.App.4th 296, 300 (2008). If the judgment contemplates any future judicial action
— other than simple enforcement of the judgment — essential to determining the rights or responsibilities of the parties, the judgment is not final.
Once a final judgment is entered, the appellate court may generally review any order or ruling made in the proceeding leading up to that final, appealable judgment. See Code Civ. Proc. §906.
Judgments Where There Are Multiple Parties
A judgment is immediately appealable if it terminates the litigation with respect to one or more parties. So, if a plaintiff sues several defendants, and the court dismisses the lawsuit against one of the defendants, the
judgment is final as to that defendant, and plaintiff may appeal the
judgment without waiting for the rest of the case to be resolved.
See Nguyen v. Calhoun, 105 Cal.App.4th 428, 437 (2003). Likewise, if there are multiple plaintiffs, and judgment is entered against some of the plaintiffs but not against others, the plaintiffs against whom judgment was entered may immediately appeal. See Panicov. Truck Ins. Exchange, 90 Cal.App.4th 1294, 1300-1301 (2001). With respect to defendants, there is an exception where the liability of one defendant is intertwined with and dependent on the liability of other defendants and their liability
has not yet been established. See Entertainment, Inc. v. Arthur J. Gallagher & Co., 125 Cal.App.4th 1022 (2005)(liability of insurance agency and insurance company in duty to defend and bad faith action were intertwined, and therefore appeal of dismissal of insurance agency was
Note that if you file an appeal with respect to one party, but there are claims against other parties remaining in the trial court, it might be prudent to ask the trial court to stay the action until the appeal has been decided.
Other Appealable Orders
Some other types of orders are made appealable by statute. For example, orders made after a final judgment are appealable. Code Civ. Proc. §904.1(a)(2). Other types of appealable orders listed in Code of Civil Procedure section 904.1 include: orders granting a motion to quash service of a summons or granting a motion to stay an action on the
grounds of an inconvenient forum; orders granting a new trial or denying a motion for judgment notwithstanding the verdict; orders granting, discharging or refusing to discharge an attachment; orders granting or dissolving an injunction; orders appointing a receiver; certain orders in partition actions; certain orders issued under the Family and Probate Code; orders directing the payment of sanctions over $5,000; an orders granting or denying a special motion to strike in anti-SLAPP cases.
Certain orders related to arbitration proceedings are also made appealable under Code of Civil Procedure section 1294
Any judgment or order that is not expressly appealable by statute is non
– appealable. Many orders that fall into this category. Some of the more common types include: orders overruling a demurrer; orders sustaining a demurrer (an appeal lies from the judgment dismissing the complaint with prejudice); discovery orders; orders denying a motion for a new trial; orders granting a mistrial due to a hung jury; orders directing a verdict (an appeal lies from the judgment issued); orders granting or denying a motion for summary judgment (a judgment following the order granting summary judgment is appealable); tentative decisions; and statements of decision.
Keep in mind that it is the substance and effect, not the form, that governs whether an order is appealable. For example, if a court sustains a demurrer and in the same document dismisses the complaint with prejudice, then that document likely would be considered a final judgment.
But if the court sustains the demurrer without dismissing the complaint,
the order sustaining the demurrer is not appealable.
See City of Morgan Hill v. Bay Area Quality Management Dist., 118 Cal.App.4th 861, 867 n. 3 (2004).
Finally, remember that interlocutory orders may be reviewed after a final
judgment has been entered, so long as the appealing party has preserved his or her arguments on appeal by raising those arguments in the trial court.
Before filing an appeal, a litigant must ensure that the order or judgment he or she wishes to challenge is appealable, or risk dismissal of the appeal. Determining whether an order is appealable is also important
to identify when the time to appeal will expire.
Respondents should also evaluate whether the order being appealed is appealable, and if not, should immediately file a motion to dismiss the appeal. Taking these simple steps at the outset of an appeal can save a party significant time and money in the long run
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