Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)
But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.
The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.
The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.
Are Summary Adjudication Orders Collateral Orders?
Edison arose over a fatal traffic stop, conducted by Caltrans at Edison's behest, while Edison performed some nearby utility work. Edison had agreed to indemnify and defend Caltrans, and when Caltrans tendered its defense to Edison after being sued, Edison rejected the tender. So Caltrans sued Edison for breach of contract, indemnity, and declaratory relief. Caltrans prevailed on its motion for summary adjudication for declaratory relief, obtaining an order that Edison "had and continues to have an immediate obligation to fully defend Caltrans...."
At first, you may be surprised to learn there was even any issue over appealability. That is because Edison involved an order on a motion for summary adjudication. Not an MSJ, but an MSA. Orders on summary adjudication are not appealable because they do not comply with the one-final-judgment rule — they do not dispose of all claims involving a party.
The court acknowledged this, citing Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 503 (Angelica Textile); Drum v. Superior Court (2006) 139 Cal.App.4th 845, 850 (Drum); see also Code Civ. Proc., § 904.1.) Rather, orders granting summary adjudication may be reviewed on appeal from a final judgment. (Angelica Textile, supra, at p. 504.)
But then the court analyzed whether the summary adjudication order could be treated as an appealable collateral order. "The collateral order doctrine is an exception to the one final judgment rule and allows an appeal from an interlocutory order under certain circumstances. (Drum, supra, 139 Cal.App.4th at p. 850; Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119; In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 (Skelley).) For an interlocutory order to be an appealable collateral order, “the interlocutory order must (1) be a final determination (2) of a collateral matter (3) and direct the payment of money or performance of an act.” (Apex LLC v. Korousfood.com (2013) 222 Cal.App.4th 1010, 1016 (Apex).)"
(But note that there is a minority view concerning the third elements, discussed in this prior article, "Collateral Orders Denying Fees Are Not Now, Not Ever, Never Appealable (But Some Courts Disagree)".)
Surprisingly, the court conceded the first two elements, i.e., that the adjudication was final, and that it was collateral. The entire appeal thus hinged on whether the declaratory relief constituted "payment of money or performance of an act."
On this point, Edison seemed to have a pretty good argument that the order commanded the immediate performance of an act, given it stated that Edison "had and continues to have an immediate obligation to fully defend Caltrans." But the court disagreed, reasoning that this order did not arise to the level of specific performance or a mandatory injunction.
(Comment: If something on the order of an injunction is required, then this might render the collateral order doctrine a bit of surplusage, given injunctions already are independently appealable under Code of Civil Procedure section 904.1(a)(6).)
Edison also argued that the order here was materially identical to the order found appealable in American Motorists Ins. Co. v. Superior Court (1998) 68 Cal.App.4th 864 (American Motorists). But the court found an important distinction in that case, because the appeal there actually arose two years later, when the court issued a separate enforcement order. Importantly about that prior case, the Edison court noted that "Indeed, if the summary adjudication order had been appealable on its own, then the appeal two years later would have been untimely."
This raises an important point about why litigants should not be too eager to expand the collateral order doctrine. If courts were to begin making more orders independently appealable as collateral orders, then these same orders would no longer be appealable when the final judgment is issued, or when the order is later enforced.
Request to Treat Appeal as Writ Petition Denied:
In its reply brief, Edison asked the court that, if it concludes the order is not appealable, it should treat its appeal as a petition for writ of mandate. The court declined. There was no reason the appellant could not have raised this request in its opening brief (particularly given the court had invited briefing on the issue of appealability before the submission of merits briefing).
The Upshot: When taking an appeal from an order whose appealability is questionable, have a care not to unduly stretch the collateral order doctrine. And be sure to preserve your writ remedies.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.