When it comes to appealing in California’s state courts, the One Final Judgment Rule governs. Challenges to interim orders must await the final judgment. (Griset v. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 697 (appeal is taken from a final judgment disposing of all controverted matters); Knodel v. Knodel (1975) 14 Cal.3d 752, 760 (“The reason for the one judgment rule is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and … a review of intermediate rulings should await the final disposition of the case”) (internal quotations and citations omitted).) But if there’s one thing taught from the very beginning of law school, it’s that every rule has an exception.

There are three major exceptions to the One Final Judgment Rule. First, many interim orders are made appealable by statute. To give one example, Code of Civil Procedure section 904.1 makes orders granting or denying anti-SLAPP motions immediately appealable. Second, judgments and orders final as to one party in multiparty litigation are appealable. For example, dismissal of one defendant by demurrer with the action continuing against another defendant. Third, there is the Collateral Order Doctrine, which this post explains below.

The Collateral Order Doctrine

The Collateral Order Doctrine originates in case law. This poses challenges to determining appealability because an exhaustive search must be made. In order for the search to be fruitful, it helps to know the contours of the doctrine.

Majority View: An interim order is collateral, and thus, appealable, if it meets three conditions. First, the order must be final as to the collateral matter. Second, the subject of the order must truly be collateral to the litigation. And third, the order must direct the payment of money or the performance of an act by appellant. (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119 (finding order denying petition to arbitrate to lack all elements of a collateral order) (effectively superseded by Code. Civ. Proc. § 1294(a)).)

An order is “final” as to the collateral matter when no further court proceedings are required on the matters resolved by the order. (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1542 (order requiring restitution payments immediately appealable as collateral order).) An order is “truly collateral” if the matter it resolves is “distinct and severable” from the subject of the litigation. (Id. at p. 1545.) And finally, affirmative acts by appellant must be required by the order. (In re A.L. (2014) 224 Cal.App.4th 354, 363 (ordering media access to dependency proceedings); Koshak, supra, 200 Cal.App.4th at p. 1545 (ordering payment of funds to receiver).) Under the majority view, all three elements must be satisfied for an order to be collateral.

Minority View: Not all of California’s appellate courts agree with the third element though. For those courts the third element—payment of money or performance of an act—is not strictly required. (Muller v. Fresno Comm. Hosp.& Med. Ctr. (2009) 172 Cal.App.4th 887, 898 (order denying motion for monetary sanctions issued after motion for new trial granted found immediately appealable); Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 298 (order setting deposition testimony fees).) The doctrinal dissonance arises because “the Supreme Court has at different times endorsed these limitations and at other times has disregarded them.” (Muller, 172 Cal.App.4th at p. 899.) Under the minority view, an order is collateral solely if the subject matter is in fact collateral and the order is indeed final. (Id. at p. 903.)

Examples of Collateral Orders

The following are just some examples of collateral orders. There are many others.

Sanctions orders against nonparties. (Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, 746-747 (sanctions of $5K arising out of dispute between appellant and non-party deponent/counsel).)

Orders re sealing/redacting court records. (Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 481, fn. 2 (order directing sealing of trial court records); In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 297, fn. 2 (order directing unsealing of previously sealed records); Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083-1084 (order requiring redaction of a filed document).)

Pretrial discovery payment orders. (San Diego Unified Port Dist. v. Douglas E. Barnhart, Inc. (2005) 95 Cal.App.4th 1400, 1402 (pretrial order requiring codefendants to share in cost of destructive testing even though only some defendants wished to pursue it).)

Receivership payments. (Schreiber v. Ditch Road Investors (1980) 105 Cal.App.3d 675, 677 (order approving the receivers invoice and account and requiring payment of same).)

In Search Of Appealability

Determining whether an interim order is appealable begins with Code of Civil Procedure section 904.1, which lists certain appealable orders that could otherwise be classified as collateral. But many more statutes make various orders appealable. So, if the order is not listed in section 904.1, the search must continue. And, if no statute is found expressly making the order appealable, the search must continue further because of the Collateral Order Doctrine. So when no statute appears, don’t rest without resort to the doctrine. After all, failure to timely appeal is fatal, and the damage will not be collateral.

Gary A. Watt on Linkedin
Gary A. Watt
Partner at Hanson Bridgett
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.