Interlocutory Appeal in California Explained: Understanding the Ground Rules

Upholding the law in any litigation is all about balancing efficiency with justice, hence, the “final judgment rule.” Therefore, when we say ‘interlocutory,’ we refer to the orders given while the case is ongoing. Generally, you cannot appeal the orders until after a trial court has issued a final judgment.

However, there is an exception to every rule – as there is in this interlocutory appeals rule. Therefore, keep reading to learn more about what interlocutory appeal is and what the requirements are for appealing such orders.

The Principles Around Filing Interlocutory Appeals

As stated earlier, as a general rule, you cannot file an interlocutory appeal until there is a final judgment. Since the trial judgment typically means the end of the case trial, you have to wait until the case ends.

“This rule is presumed to be beneficial because it prevents appellate courts from being swamped with cases,” says employment lawyer Rusty Levin from the Levin & Nalbandyan LLP. Imagine the disorderliness if every party in a case ran off to appeal every decision made during the case. However, as strictly applied as this rule is, there are a few exceptions – just like in any other ‘strict’ rule.

One of the exceptions is that you can immediately appeal injunctions and significant sanction orders. In simpler terms, you can immediately appeal issues that the law considers ‘collateral’ to the main dispute being tried. Therefore, before filing your appeal, check that it fits into the exceptions, or you risk losing your right to challenge the ruling.

The Process of Appealing An Interlocutory Order In California

Getting an appellate review of an interlocutory order in California is possible, but it is no walk in the park. With that said, if you want to appeal an interlocutory order in California, here is the process involved:

• First, file a motion for leave and a Notice of Appeal, which must indicate which court will hear the appeal. The Bankruptcy Appellate Panel or the District Court is in charge of ruling on the motion for leave to appeal such orders.
• Next, file the Notice of Appeal with the bankruptcy court, but you must also file a Notice of Motion for Order without Hearing.
• The bankruptcy court will then file a Notice of Referral of Appeal with the BAP or District Court. The court then opens an appellate court file and sends a Notice of Referral to all the parties to the appeal.

Requirements for a Successful Appellate Review Filing

While you can file an interlocutory appeal in California, its success in being approved depends on meeting certain requirements. For the appeal to even be valid and considered at all:

• Efficient enough for immediate resolution

The trial court’s opinion must have involved a controlling question of law – that is, it can resolve the case significantly. That would mean it offers enough grounds for the appellate court to resolve the case now rather than wait till the case is over.

• Substantial grounds for opinion disparity

Also, it means there is a substantial ground for difference of opinion; this part is particularly delicate to argue. Essentially, you are asking the court that just ruled against you that they might be wrong.

However, you may win if you can show how the other courts disagreed with the opinion rather than rehash your already-prepared arguments. Then again, that is only possible if the trial judge is open-minded enough to admit they made an error.

The final requirement is that the immediate appeal has the potential to materially advance the litigation’s ultimate termination.

Conclusion: After the Appeal

If the court does not certify your appeal, there is nothing else you can do; the decision is unreviewable. However, if it does, do not relax just yet; you must file another petition within a strict ten-day deadline. This petition will ask for permission from the Court of Appeals to accept the interlocutory appeal the court just certified.

Ultimately, understand that the decision to certify or not certify an interlocutory appeal in California is entirely up to the court’s discretion. Hence, it may deny the certification for no reason, and even if both courts approve it, you may still need to continue litigation.