Many general civil litigators, at some point, will find themselves in probate court litigating a dispute among the trustees and beneficiaries of a family trust. It may be a petition to hold the trustee accountable for mismanagement, or it may be a petition to construe a trust’s terms. The civil litigator venturing into probate court will find that, in areas like discovery, the Probate Code simply adopts the Code of Civil Procedure’s rules. There are some procedural issues, however, that civil litigators must approach differently in probate court. At the top of this list is the timing and availability of the “interlocutory” appeal.

Appeals in civil actions are subject to California’s “one judgement rule.” Under this rule, litigants can only appeal a final judgment that disposes of all the claims and defenses asserted in the case. Thus, a plaintiff who asserts multiple causes of action against a defendant and who loses one of those causes of action on summary adjudication cannot appeal that order until the court enters a final judgment that disposes all the claims in the plaintiff’s complaint. While there are statutory exceptions to the one judgment rule, the vast majority of orders issued during the course of a civil action are not immediately appealable.

For trust litigation and other proceedings in probate court, appeals are governed by Probate Code Sections 1300 through 1304. These sections provide litigants with many more opportunities for interlocutory appeals. Probate Code Section 1304(a), for example, allows an immediate appeal of any order under Probate Code Section 17200(b)(1) that construes the provisions of a trust. The fact that the petitioner asserts other related claims against the same respondent does not postpone the appeal. However the probate court characterizes the order—as an order granting a petition in part, an order granting summary adjudication, or an order following a bifurcated trial—the losing party has the right to immediately appeal the court’s ruling on that issue.

Sections 1300 through 1304 pose a trap for the unwary civil litigator. A party who fails to file a timely appeal of an order that is appealable under Sections 1300 through 1304 loses the right to appeal that order altogether. In other words, once the 60-day period for filing an appeal expires, the probate court’s order becomes final and the losing party is precluded from revisiting the claims and issues resolved in that order if and when they appeal the final judgment.

Fortunately, there are many appealable probate court orders that are easy to spot because they resemble orders that are immediately appealable under the Code of Civil Procedure. An order compelling a trustee to transfer or sell trust property, for example, looks and functions like an order granting an injunction, which is always immediately appealable under Section 904.1(a)(6).

There are other appealable probate court orders, however, that hide below the surface and are easy to miss. Probate petitions often combine factually distinct claims that arise out of the same fiduciary relationship. A trust beneficiary, for example, may assert a claim under Probate Code Section 17200(a)(3) to invalidate a trust amendment and, in the same or a related petition, assert a claim to recover property from the trust under Probate Code Section 850(a)(3). If the probate court were to issue an order disposing of only one of these claims, such as in an order sustaining in part a demurrer, that order would be immediately appealable under Sections 1300(k) or 1304(a). If a law and motion judge in the civil department were to issue the same order, by contrast, the plaintiff would have no right to appeal until the court enters a final judgement disposing of the entire case.

Probate Code contains also some exceptions can be difficult to apply. Under Section 1304(a)(1) for example an order “compelling the trustee to submit an account or report” is not immediately appealable. This seems clear. But, an order compelling a trustee to account becomes immediately appealable if the probate court’s order implicitly resolves a threshold issue that would be immediately appealable if contained in a separate order. In Esslinger v. Cummins, 144 Cal.App.4th 517 (2006), for example, an order compelling an accounting was immediately appealable, despite Section 1304(a)(1), because the court’s order implicitly decided that the petitioner had standing to petition the court for an accounting. The court’s resolution of this implicit question, which could have been raised and resolved separately in a petition under Section 17200(b)(2), triggered the right to an immediate appeal.

When general civil litigators represent clients in probate court, whether in a trust dispute, conservatorship, guardianship or probate matter, they must approach interlocutory appeals differently. In civil actions, when a litigator is deciding whether to take an interlocutory appeal, the answer is almost always “wait until final judgment.” In probate proceedings, on the other hand, the answer frequently is “appeal now or else.”

Kevin P. O’Brien is a senior associate on Hartog, Baer & Hand’s litigation team. He can be reached at [email protected].