So you are thinking of appealing. In California’s state courts, initiating an appeal requires a final judgment or an appealable order. An order is appealable if either a statute expressly says so or it carries the same effect as a final judgment. Hmnn, getting complicated already. A good place to start is Code of Civil Procedure section 904.1. Listed there, for example, is an order granting a new trial or denying a JNOV motion. So is an order granting or denying an injunction. So too, an order granting or denying an anti-SLAPP motion. But a preliminary order that is followed by a final judgment is not an appealable order.

The difference between a final judgment and an order that is not appealable can seem slight. For example, an order granting a motion for summary judgment or sustaining a demurrer without leave to amend may look and sound final to the losing party, but is not an appealable order. The ensuing judgment disposing of the action, however, is appealable. Likewise, an order denying summary judgment is not directly appealable, but may be appealed from the final judgment. (Waller v. TJD Inc. (1993) 12 Cal.App.4th 830, 836.) But be careful, given the subsequent trial on the merits, a writ should be considered in order to avoid the denial of summary judgment being viewed as harmless error when the appeal is finally taken. (Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269-1270.)

As for a judgment, it must be complete, reviewable, and final. A judgment that disposes of some but not all causes of action is not a “final judgment.” (Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 442.) But a judgment that terminates the litigation as to some of the parties is considered final as to those parties and appealable. (Justus v. Atchison (1977) 19 Cal.3d 564, 567-568 (disapproved on other grounds in Ochoa v. Super. Ct. (1985) 39 Cal.3d 159, 171.)

What about orders made after judgment is entered? Turning to CCP section 904.1, to be appealable a post-judgment order must satisfy two requirements: (1) “the issue raised by the appeal from the order must be different from those arising from . . . the judgment;” and (2) “the order must either affect the judgment or relate to it by enforcing it or staying its execution.” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652.) For example, a post-judgment order on a motion for attorney fees is an appealable order. (P. R. Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053.) A word to the wise, watch out for this one; there's far too many reported cases on failure to appeal from the subsequent award of fees.

And another warning. Even if the judgment or order is appealable, the right to appeal can be waived. In Casas v. Record Town USA 2009 WL 1652978, the case settled and Casas accepted the attorney fee award. Nevertheless, she filed an appeal claiming that the trial court abused its discretion by not awarding her higher fees. The court held that Casas did not expressly waive her right to appeal - the settlement agreement was silent. But Casas impliedly waived the appeal because “the right to accept the fruits of a judgment and the right to attack the judgment on appeal are wholly inconsistent.”

Filing a notice of appeal is simple. Failure to file a timely notice of appeal is fatal. (Van Beurden Insurance Services, Inc. v. Customized Worldwide Weather Insurance Agency, Inc. (1997) 15 Cal.4th 51, 56.) More on that in my next post.