It would be nice if all appealable orders were listed under Code of Civil Procedure section 904.1. After all, the statute purports to govern the issue. But any search that ends there on the assumption that if it’s not listed, it’s not appealable, is headed for disaster. As seasoned appellate practitioners know, 904.1 can be just the starting point on the long and winding road of appealability. Failure can mean that the right to appeal is lost—forever. (Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
Section 904.1 even uses a somewhat deceptive structure. For example, informing the reader that “an appeal may be taken from any of the following.” (Emphasis added.) Maybe that’s just legislative wit, recognizing that although an appeal can be taken, not all appeals should be taken. Ask any Court of Appeal justice, right?
Deceptiveness can also arise because section 904.1 provides an impressive list of appealable orders, running a gamut from post-judgment orders to sanctions orders greater than $5000, with numerous kinds of orders in between. (See Code of Civ. Proc. §904.1(a)(2)-(14) & (b).) One could be forgiven for thinking this esoteric list must be exhaustive. And the statute does not signal that you should keep looking elsewhere, by use of terms like “including but not limited to the following,” and so on. Examples of appealable orders omitted from 904.1 but located in the Code of Civil Procedure alone include: orders on petitions regarding arbitration awards (§ 1294); orders of dismissal (§ 581d); and orders of exemption from levy (§ 703.600), just to name a few.
Another deceptive feature of 904.1 is found in subdivision (a)(10) which says that appeals may be taken “from an order made appealable by the Probate Code or the Family Code.” These express references to two other codes could lead a reader to think that no other codes instruct as to appealable orders. But stop searching at your own peril. Orders made appealable by other codes are too numerous to mention (even ignoring criminal cases).
Nor does the statute say, or even suggest, that even if one exhaustively searches a wide array of statutes and finds nothing, case law has also determined whether some orders are appealable. Some prime examples of orders made appealable by the courts include orders on motions to seal records, orders denying class certification, orders denying relief from the Government Claims Act claim-filing requirements, and orders on attorney disqualification. There are many more.
All of which makes confirming the appealability of an order a more complex task than it might otherwise seem. Searching for appealable orders can be difficult, and given the stakes, kind of nerve-wracking. And this post hasn’t even delved into judgments construed as final for purposes of appeal. Kind of scary, isn’t it?
Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.
