Appellate Insights

Appeals as-of-right are statutory and subject to strict timing constraints in California.  Most lawyers know the fatal consequence of waiting too long to notice an appeal.  But it’s also possible to notice an appeal too early – causing practical problems that are serious, even though not fatal.  Premature appeals create confusion over whether the trial court has lost power to hold important proceedings.  The litigants will also waste time and money dealing with the cascade of court actions and deadlines resulting from the premature appeal notice.  So what is “premature”?

• You cannot notice an appeal until the Court actually enters an appealable final judgment or appealable order.  Oral rulings don’t suffice.

• If a cross-complaint remains pending between a plaintiff and defendant, even the completely final disposition of the main complaint cannot be appealed.  All claims and defenses going both directions must be fully adjudicated.

• Nor does a jury verdict suffice, even assuming it covers all claims and defenses.  An aggrieved party must appeal from the ultimate judgment on the verdict.

► The practical message:  While there are remedies for appealing too soon (versus no remedy for appealing too late), the best practice is to appeal in the correct window.  Whenever you face an adverse order or trial result, assess carefully whether and when it’s appealable, or find someone who can.