Labels Matter: To Enforce an Appellate Stay, Seek an “Injunction”

Timothy Kowal, Esq.
August 17, 2022

There is a high frustration quotient in defending against judgment enforcement. There is supposed to be an automatic stay of orders on appeal, but in practice this is wishful thinking. So you may have to do what the aggrieved party did in Merritt v. Specialized Loan Servicing, LLC (D6 Aug. 11, 2022 No. H048463) 2022 WL 3274131: file a motion to enforce the stay.

Only, don’t call it a “motion to enforce a stay.” As the Merritt court noted, an order denying enforcement of an automatic stay is not listed as among the appealable orders in Code of Civil Procedure section 904.1. Instead, file it as an application for a temporary restraining order or a preliminary injunction. It’s the same thing, and denials are appealable under section 904.1.

Orders Denying Enforcement of the Appellate Stay Are Not Appealable

When you read the facts of the case, you can see why the court did not pay the Merritts the benefit of looking beyond labels. The Merritts are running on fumes on a 15-year-long dispute with their bank on whose home loans the Merritts stopped paying back in 2008. Eventually, the Merritts were declared vexatious litigants, and were ordered to post a $250,000 bond to continue their litigation—at this stage, a complaint asserting debt-collection torts.

The Merritts appealed various orders, but the interesting one was the order denying their ex parte application to enforce the automatic stay of foreclosure of their home. The court held that that order was not reviewable because it is not appealable: “An order denying an application to enforce an automatic stay pending appeal under section 916 is not one of the orders listed in section 904.1.”

Instead, to Enforce an Appellate Stay, Appellants Must File a Petition for Supersedeas

The court went on to note that “[T]he appropriate method of challenging the denial of an order to enforce the stay arising under section 916 is a petition for writ of supersedeas [citations].” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572; Estate of Dabney (1951) 37 Cal.2d 402, 408.)

But the curious thing is that the appellants did file a petition for supersedeas. And it was summarily denied.

There is authority that the summary denial of a pretrial writ petition on an issue that could also be reviewed on appeal from the judgment is not final (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172 [relating to vexatious litigant statute].)

On the other hand, where a writ petition is the only authorized mode of appellate review, summary denial of the petition is necessarily on the merits, and qualifies as a final judgment adversely determined to the petitioner. (Ibid.)

But this point is not quite ironclad. For example, consider that an order making a vexatious litigant declaration under Code of Civil Procedure section 391.7 is not appealable under section 904.1. So under the rule mentioned above, they could only ever be reviewable via writ, meaning litigants would never be entitled to a reasoned decision on them. (State ex rel. Dept. of Pesticide Regulation v. Pet Food Express Ltd. (2008) 165 Cal.App.4th 841, 852 [unlike an appeal, a writ petition may be summarily denied without a written opinion].) But then again, at least one case has held that these prefiling declarations may be reviewed as injunction orders. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.) And injunction orders are directly appealable under section 904.1. (But a recent unpublished case, discussed here, did not cite or follow Luckett. )

The upshot is that you can get review of an order denying enforcement of an appellate stay, but only on a writ basis—which means you have no right to a reasoned decision as you would on a direct appeal.

Can Litigants Enforce the Appellate Stay Via an Injunction Order?

So that raises the question: could the stay-enforcement question have been raised on direct review, so that you can get a reasoned opinion? The answer is: Maybe. A few things to note:

First, orders granting or denying injunctions are appealable under section 904.1(a)(6).

Second, if the trial court denied the motion, note that the appeal would not stay enforcement. So you still have to address any threat of mootness, such as by filing a petition for a writ of supersedeas in the Court of Appeal.

But even if that petition were summarily denied, then unless the appeal were rendered moot, you should still entitled to a reasoned decision on the merits on the direct appeal from the order denying an injunction. (Cal. Const., art. VI, § 14 [appellate court decisions that determine causes shall be in writing with reasons stated].)

Note, however, that an initial search does not reveal any appellate cases in which litigants have sought to enforce an appellate stay via injunctions. But here are some other examples of orders that have been treated as injunctions and thus directly appealable:

  • Pretrial vexatious litigant declarations may be treated as injunctions and thus appealable. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)
  • An order requiring genetic testing is appealable as a mandatory injunction. (Code Civ. Proc., § 904.1, subd. (a)(6); Luitwieler v. Superior Court (1921) 54 Cal.App. 528, 530-531.)
  • Postjudgment orders affecting judgment-enforcement are appealable. (Code Civ. Proc., § 904.1, subd. (a)(2); Olson v. Cory (1983) 35 Cal.3d 390, 400; Lovret v. Seyfarth (1972) 22 Cal.App.3d 841 [ 101 Cal.Rptr. 143].) "`Orders made to enforce a judgment or to prevent its enforcement are appealable. The principle is that an order which affects enforcement of the judgment is appealable whether it favors the judgment creditor or the judgment debtor.'" (Lovret, supra, 22 Cal.App.3d 8.)
  • Orders compelling discovery, however, are not appealable and there do not appear to be any cases treating them as appealable injunction orders.

Logically, a motion to enforce the automatic appellate stay is in the nature of an injunction, as it seeks to preserve the status quo.

So next time you have to move for an order to enforce the automatic appellate stay, frame the motion alternatively as a motion for a preliminary injunction, specifying the acts that would tend to render the appeal moot. If that motion is denied, file your petition for supersedeas. But also appeal the denial order. That way, you have chance of getting the Court of Appeal to actually furnish a reasoned decision.

Why is a reasoned decision so important? Getting a reasoned decision is how litigants can have confidence the court has actually considered an issue. “Misconceptions and oversights of fact and law are discovered in the process of writing.” (Baker, A Review of Corpus Juris Humorous (1993) 24 Tex. Tech. L.Rev. 869, 873, quoted in Lebovits, Curtin & Solomon, Ethical Judicial Opinion Writing (2008) 21 Geo. J. Legal Ethics 237, 345.) The writing process helps ensure the decision is rooted in facts in the record rather than subjective preferences. (Walker, Discovering the Logic of Legal Reasoning (200) 35 Hofstra L. Rev. 168; cf., 2 Cooper, State Administrative Law (2d ed. 1965) pp. 467-68 [findings requirement in administrative decision-making facilitates orderly analysis and minimizes random leaps from evidence to conclusions]; Baker, op. cit. supra, 24 Tex. Tech. L.Rev. at 872, quoted in Lebovits et. al., op cit. supra, 21 Geo. J. Legal Ethics at 244 [written decisions “constrain arbitrariness”].) Written findings “make the case easily reviewable on appeal by exhibiting the exact grounds upon which the judgment rests.” (Frascona v. Los Angeles R. Corp. (1920) 48 Cal.App, 135, 137.)

Tim Kowal  is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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