Federal appellate practitioners are readily familiar with the principle that a district court’s order denying summary judgment is generally not immediately appealable. Instead, an appeal regarding the summary judgment denial must wait until a final judgment has been rendered.  This most often occurs after trial.

But if the parties proceed to trial, to what extent is the defendant who lost the summary judgment motion responsible for re-raising arguments they lost at summary judgment prior to the appeal?

California Code of Civil Procedure 904.1 is probably not a stranger to appellate lawyers who practice in California, as the statute provides a list of certain types of pre-trial orders from which an appeal may be taken. One of the categories of orders listed is “order[s] granting or dissolving an injunction, or refusing to grant or dissolve an injunction.” The statutory phrase “injunction” is interpreted broadly (subject to some exceptions) and applies to a number of different types of injunction orders. (See Valley Casework, Inc. v. Comfort Const., Inc. (1999) 76 Cal.App.4th 1013, 1019 [preliminary injunctions]; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332 [temporary restraining orders]; R.D. v. P.M. (2011) 202 Cal.App.4th 181, 187 [civil harassment restraining orders];  North Beverly Park Homeowners Ass’n v. Bisno (2007) 147 Cal.App.4th 762, 765 [postjudgment orders granting or denying requests to modify or dissolve injunctions].)

Under the California Arbitration Act (“CAA”), an adverse award is subject to judicial review. Any party may petition the superior court to either vacate or correct the award. (Code Civ. Proc. § 1285.) But in most instances, such review is limited by statute, and such petitions face a number of substantive and procedural obstacles. Before seeking review of an arbitrator’s award, consider the following principles:

Generally, a party challenging an award may only petition to correct or vacate a final award. Where the award is interim, meaning it did not resolve all issues in the arbitration, a court lacks jurisdiction to vacate or correct it. (See Maplebear, Inc. v. Busick (2018) 26 Cal.App.5th 394, 407.) A party may seek writ review of an interim award, but such writ petitions are “extraordinary,” discretionary, and rarely granted.

Can an order ruling on a motion or petition to compel arbitration in federal court be appealed? While federal appellate jurisdiction is generally limited to “final decisions” of the district courts (28 U.S.C. § 1291), the Federal Arbitration Act (“FAA”) authorizes interlocutory appeals from orders denying arbitration. But the ability to appeal an order that compels arbitration depends on whether the district court dismisses the civil action. Before appealing an order on a motion or petition to compel arbitration, consider the following principles and pitfalls:

FAA appellate jurisdiction extends to orders “refusing a stay of any action under section 3” and orders “denying a petition under section 4 … to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(A)-(B). Section 16 promotes appeals from orders denying arbitration and limits appeals directing arbitration, consistent with Congress’s intent to have arbitrable disputes proceed quickly to arbitration. Bushley v. Credit Suisse First Bos., 360 F.3d 1149, 1153 (9th Cir. 2004). Thus, a district court’s denial of a motion or petition to compel arbitration will generally give a party the right to appeal.

Sometimes in an appeal, the appellant takes a “kitchen sink” approach to briefing by advancing a number of baseless claims. Appellant has the burden of showing the lower court erred and may believe if it hurls enough contentions, maybe one will stick. Even though some of appellant’s arguments may have merit, that type of shotgun approach to appellate litigation can be frustrating and costly for a respondent tasked with investigating and responding to all of the arguments.

But, in California, a respondent facing such a scenario may—in the right kind of case—be able to recover a portion of its attorney fees for a “partially frivolous” appeal.