Appealable Orders

Generally, a party must wait for a final judgment in the trial court before appealing. However, there are a limited number of appealable orders -- short of a final judgment -- that can be appealed.

Some trial court orders -- like orders sustaining a demurrer or granting a summary judgment motion -- end the litigation but require a judgment or order of dismissal before the case is considered over. The appeal lies from the final judgement or dismissal order, not from the earlier order.

Until recently, the Courts of Appeal have treated appeals from these orders as appeals from the final judgment, but the Courts of Appeal have increasingly started dismissing these appeals.

Date sent: Wed, 28 Jan 1998

The justices [in an oral argument in the 2nd App. District, Div. 1] took one of the appellants to task for appealing from a non-appealable order. Apparently, the trial court granted a demurrer to the first cause of action, and the plaintiff had then dismissed the remaining causes of action. The plaintiff had then appealled from the order sustaning the demurrer.

The Court of Appeal indicated that it and other divisions had repeatedly indicated that it would no longer treat appeals from non-appealable orders as proper appeals if the appellant had not obtained an appealable judgment or order. The court accepted the case for submission, but the court appeared to be leaning toward dismissing the appeal because there was no appealable order or judgment.

Date sent: Wed, 28 Jan 98

This seems to be a no-win situation. I once tried to have an appeal tossed out because it was not taken from an appealable order, and cited some pretty harshly-worded opinions decrying this practice. My brief may have rattled appellant's counsel, but the court went ahead and decided the appeal on the merits. It was a close case, so maybe the court would rather make an example of someone who was clearly going to lose anyway.

The above discussion was taken from the California Appellate Law Discussion list and edited.

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