Sharon Baumgold, California Appellate Law Group (Photo: Courtesy Photo)

In my nearly 40 years of experience as a writs attorney at the California Court of Appeal, I sometimes noticed that attorneys would file appeals of non-appealable orders or file mandate or prohibition writ petitions of appealable orders. Sometimes the mistake simply slowed down the process. Other times, the appellate court, strictly adhering to filing rules, refused to review the matter. The worst scenario was always where the filing of an appeal instead of a petition, or vice versa, robbed the appellate court of its jurisdiction to review the issue on its merits at all

This article should help clear up that confusion for advocates.

A trial court order is appealable only when made so by statute. Of course, a final judgment is immediately and directly appealable. Generally, collateral orders made after a final judgment, such as attorney's fee awards, are often separately appealable. Some other orders are specifically made appealable by statute, including those for monetary sanctions above $5,000, appointing a receiver, granting or dissolving an injunction, and discharging or refusing to discharge a right to attach order.

All other orders are reviewable by writ petition. Specific statutes provide that certain orders are reviewable solely by writ petition, and those statutes require filing within a short period of time. Those orders include rulings on disqualifying a judge, change of venue, coordinating actions, lis pendens, whether a settlement was made in good faith, and a few other topics.

Sometimes, it is unclear whether an order is directly and immediately appealable or whether it may be reviewed by writ petition. Generally, this situation occurs when the court of appeal divisions are split as to whether the order, itself, is appealable. For example, in H.D. Arnaiz, Ltd. v. County of San Joaquin, a party appealed an order vacating a voluntary dismissal. The 3rd District noted that both a 1st District case and a 4th District case held that such an order was directly and immediately appealable. Relying on the plain terminology of the governing statute, the 3rd District disagreed with the cases in the two other districts to conclude that the order was not appealable. (Fortunately for the challenger, the court exercised its discretion to consider the matter as a writ petition.) Another example is City of Santa Cruz v. Patel, in which the 6th District broke with a long line of 2nd District cases to hold that an order to comply with a subpoena was appealable.

If the law is clear that an order is not appealable, then the appellate court may dismiss the appeal and refuse to deem the matter as a writ petition. In Mid-Wilshire Associates v. O'Leary, the 2nd District did just that, explaining that to do otherwise would "encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be 'saved by the appellate courts.' We cannot condone or encourage such practice." More recently, in Warwick California Corp. v. Applied Underwriters, Inc., the 1st District quoted Mid-Wilshire when it dismissed an appeal from a non-appealable order and refused appellants' request to deem the matter a writ petition.

There may also be questions whether the order is appealable at that particular stage in the litigation or as to the parties involved. For example, in Olson v. Cory, the challenged order was made after judgment. Acknowledging that the general rule is that orders made after judgment are appealable, the California Supreme Court analyzed the facts and applied the law to conclude that the order before it was not appealable. Explaining "the issue of appealability was far from clear in advance," the Supreme Court deemed the appeal to be a writ petition and reached the merits.

If the case law is unclear as to whether a writ or appeal is the correct way to challenge an order your trial court has issued, the best way to protect yourself is to file both a notice of appeal and a writ petition. It is essential that counsel notify the Court of Appeal in writing of this double filing. Both the petition and its attendant points and authorities must provide the relevant authority to demonstrate the split and request that the court of appeal decide the appealability issue. Note that the opposing side is free to move the court to dismiss the appeal and deny the petition. Until it determines whether the challenged order is appealable, the court of appeal may consolidate the petition with the appeal, or it could simply hold the petition pending resolution of the appeal. If the appellate court decides that the order is appealable, it will proceed with the usual appeal protocols and decide the issues on their merits. It might then deny the petition in the appeal opinion or by separate order. If the appellate court determines that the order is not appealable, it will proceed with writ petition protocols and dismiss the appeal.

Of course, the Court of Appeal also has jurisdiction to consider a challenge to any order—even orders made appealable by statute—by writ petition when the petitioner shows that appeal is "not a plain, speedy, and adequate remedy." Courts have held an appeal is an "inadequate" remedy when a party would suffer irreparable injury by waiting for appeal of a final judgment or otherwise in the absence of writ relief.

For example, a party may be able to show that a ruling deprives that party of the opportunity to plead a cause of action or defense, and, if so, that there is the substantial likelihood that the partial disposition may be held on appeal to constitute error. In Duke v. Superior Court, a demurrer was sustained without leave to amend one cause of action. Of course, the ruling would be reviewable on appeal after final judgment. Nevertheless, the plaintiff filed a petition for review of the order sustaining of the demurrer. The appellate court took the writ, explaining in its opinion that the subject ruling had deprived the plaintiff of pleading one of her causes of action. The 5th District decided to review the merits by writ petition, because "timely appellate intervention by extraordinary writ would permit the entire case to be disposed of in a single trial."

Likewise, in Global Protein Products, Inc. v. Le, the parties appealed from an order denying their renewed motion to dissolve a stipulated permanent injunction. An order denying a renewed motion is not appealable, but had the appellants filed a new motion to dissolve the injunction, they could have appealed the order of denial. The 6th District decided to deem the appeal to be a writ petition because of numerous factors: without an immediate decision, the appellants were subject to contempt proceedings for refusing to comply with the injunction; the parties had fully briefed the merits; and the same issues were likely to arise as long as the stipulated injunction remained in force.

An appealable order can be attacked in various ways. It would be wise to seek out an appellate specialist to find the best way to challenge such an order.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. Sharon Baumgold is of counsel with the firm. She spent nearly four decades as a lead writ attorney in the Second District of the California Court of Appeal in Los Angeles. Find out more about Sharon and the California Appellate Law Group LLP at www.calapplaw.com.