May 2023 Update
There have been a number of developments since the publication of the 2022 update to this practice guide.
We updated all California Rules of Court citations and Judicial Council forms throughout the guide. We also updated all citations to rules of the appellate district courts and the California Supreme Court.
Oral argument protocols.
On October 5, 2022, the California Supreme Court issued Administrative Order 2022–10–05 outlining the protocols for in-person oral argument beginning in November 2022 until further order of the court. Under the supreme court’s order, counsel have the option to appear in person, or remotely via video. Procedures for remote and in-person arguments at the courts of appeal are in a state of flux. Counsel should consult the applicable court’s website and/or the clerk to confirm the applicable procedure for appearances.
Given a split of appellate authority, the California Supreme Court granted review to consider whether a CCP §877.6(e) writ petition is the sole means of challenging a good faith settlement determination. See Pacific Fertility Cases (review granted Aug. 17, 2022, S275134; opinion at 78 CA5th 568 to remain published and citable for persuasive value until further order). See §1.96.
In Siry Inv., L.P. v Farkhondehpour (2022) 13 C5th 333, the supreme court agreed with the court of appeal’s determination that defendants’ challenges to the damages award were errors in law under CCP §657, properly raised in a motion for new trial and motion to vacate. See §2.6.
In Arega v Bay Area Rapid Transit Dist. (2022) 83 CA5th 308, the court, applying Cal Rules of Ct 8.108(c), determined that a motion to vacate under CCP §473(b) extended the plaintiffs’ time to appeal from an adverse summary judgment. See §§2.82, 2.83B.
Appealable judgments and orders.
In Ratcliff v The Roman Catholic Archbishop of Los Angeles (2022) 79 CA5th 982, the court reasoned that under CCP §906, some intermediate rulings are reviewable, but that does not make them appealable. See §3.3.
In Guardianship of Saul H. (2022) 13 C5th 827, the court held that an order denying a petition seeking state-law predicate findings to support a federal application for special immigrant juvenile status was the equivalent of an appealable judgment, because the order completely disposed of the petition and left no issues to be resolved. See §3.27.
In Meinhardt v City of Sunnyvale (review granted June 15, 2022, S274147; opinion at 76 CA5th 43 to remain published and citable for persuasive value), the appellate court concluded that a ruling styled “order” that denied a petition for writ of administrative mandate and resolved all issues in the case, rather than a later document styled “judgment” that merely restated the prior order, was the appealable judgment. The California Supreme Court granted review to determine whether the appeal from the judgment was untimely. See §3.33.
In Allen v San Diego Convention Ctr. Corp. (2022) 86 CA5th 589, the court held that an order denying certification of a class claim was appealable even though the corresponding claim under the Private Attorneys General Act of 2004 (PAGA) remained, because the order made clear the PAGA claim was not viable as it was derivative of claims dismissed on demurrer. See §3.53.
In Park v Law Offices of Tracey Buck-Walsh (2021) 73 CA5th 179, the court concluded that an order directing a party to pay a nonparty’s costs to comply with a subpoena duces tecum was a collateral ruling and, therefore, appealable. See §3.57.
In Doe v Regents of Univ. of Cal. (2022) 80 CA5th 282, the court held that the denial of plaintiff’s nonstatutory motion to vacate a void order was appealable. See §3.74.
In Marriage of Deal (2022) 80 CA5th 71, the court concluded that an order denying a vexatious litigant’s request to file new litigation is not appealable. See §3.81.
In Kirk v Ratner (2022) 74 CA5th 1052, the court held that an order dismissing a petition to vacate an interim award is not appealable because the award is not final, disagreeing with Maplebear, Inc. v Busick (2018) 26 CA5th 394, 400. See §3.93.
In Dow v Lassen Irrig. Co. (2022) 75 CA5th 482, the court held that the court-appointed watermaster who administered the court decree was not aggrieved, and therefore had no standing to appeal, because he continued to be compensated for increased administrative costs and burdens under the court’s interpretation of the decree. See §5.16.
In Sarkany v West (2022) 82 CA5th 801, the court recognized the trial court’s discretion to waive the appeal bond requirement for an indigent party under CCP §995.240. See §6.21.
Filing the notice of appeal.
In Garg v Garg (2022) 82 CA5th 1036, the court outlined five “areas of refuge from the harsh rule” that the timely filing of a notice of appeal is a “jurisdictional prerequisite” to appellate jurisdiction. See §7.31A for a discussion of these narrow exceptions to the rule.
In Arega v Bay Area Rapid Transit Dist., supra, the court held that a motion to set aside an adverse summary judgment under CCP §473(b) is a motion within the meaning of Cal Rules of Ct 8.108(c) for purposes of extending the time to appeal, citing the Advisory Comment to Cal Rules of Ct 8.108(c). See §§7.72, 7.84A.
Appeals in limited civil and small claims cases.
In Dedication & Everlasting Love to Animals, Inc. v City of El Monte (2022) 85 CA5th 113, the court held that the appellate division of the superior court has exclusive jurisdiction over appeals in limited civil cases, including the review of citations for violating the municipal code. See §10.2.
Motions, applications, and requests.
In Garg v Garg, supra, the court concluded that Cal Rules of Ct 8.77(d), which provides relief to a party who misses a filing deadline due to an electronic transmission error, applies to notices of appeal even though they are filed in the trial court. See §§11.175–11.177.
In Kaney v Custance (2022) 74 CA5th 201, the court concluded that CCP §437c(m)(2) mandates rehearing only when the court of appeal affirms an order granting summary judgment or summary adjudication based on an issue the trial court had not relied on. See §19.9.
Attorney fees and costs.
In Shiheiber v JPMorgan Chase Bank, N.A. (2022) 81 CA5th 688, the appellate court did not award sanctions because respondent did not file a noticed motion for sanctions, despite suggesting sanctions in its brief. See §20.34.
In Clarity Co. Consulting, LLC v Gabriel (2022) 77 CA5th 454, the appellate court imposed sanctions for an appeal that fell within “the most egregious conduct” referred to in Marriage of Flaherty (1982) 31 C3d 637, 651, holding the attorney and appellant jointly and severally responsible for opponent’s fees of $12,798.50 and processing costs of $8,500, since pursuing an appeal “so totally lacking in merit” violated the attorney’s professional duties. See §§20.39, 20.41, 20.45.