This article originally appeared in the Daily Journal on August 26, 2019.
As most trial lawyers know, the “one final judgment” rule allows an appeal to be taken only after the trial court enters a final judgment that ends the trial court proceedings by completely disposing of the matter in controversy. There are certainly exceptions to this rule, particularly in family law cases — most notably, you can directly appeal an interim order concerning the payment of money, like a support or fee order. But most other orders, like custody orders made pendente lite,are not appealable until the final judgment issues.
Waiting for a final judgment in a family law matter, however, means that litigants may be required to delay a long time before they can appeal. This long wait can wreak havoc on the wallets of ordinary people. In addition, marital status cases (that is, proceedings for divorce, legal separation or nullity) frequently involve interim rulings on bifurcated issues, and early resolution of these issues could end the case right then and there. Traditionally, these interim rulings were treated the same as bifurcated determinations, which meant that any appeal had to await final judgment in the entire action unless the ruling qualified as a statutorily appealable order.
Thankfully for family law litigants, however, there is a statutory exception to the “one final judgment rule” for interim rulings in a dissolution, nullity or legal separation proceeding. When the trial court bifurcates an issue for separate trial or hearing prior to disposition of the entire case, the Court of Appeal “may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate.”
The procedure requires a two-step process. First, counsel must ask the trial judge to “certify” for direct appeal the bifurcated issue. Second, that certification then must be “accepted” for review by the Court of Appeal. Neither court is mandated to accept a request for certification for an immediate appeal under this provision. Unlike most other statutory appeal rights, the right to directly appeal a family law court’s bifurcated ruling is entirely discretionary.
As explained below, certain kinds of rulings are most likely to warrant this discretionary review — and there are plenty of traps for the unwary in requesting an immediate appeal under this provision.
Cases Appropriate for Certification for an Immediate Appeal
To get immediate appellate review the moving party must show that jumping to an appellate court early is warranted because early resolution of an issue is likely to lead to settlement of the entire case, will simplify remaining issues, will conserve the courts’ resources or will benefit the well-being of a child of the marriage or the parties. Rule 5.390, which governs bifurcation of issues in a marital status action, is the best guide post since it sets out a list of issues that may be appropriate to try separately in advance. These issues include the validity of the premarital or postnuptial agreement, the date of separation or date of valuation of assets, nature of the property, apportionment and value of a business or professional goodwill. The resolution of these issues will likely simplify the outcome of all other issues, making bifurcation appropriate. And of course, bifurcation is a necessary first step to subsequent trial court certification for immediate appeal.
Timing “Traps” for the Unwary.
The timing rules for certification for an immediate appeal are far shorter than the rule for filing of a notice of appeal from a final judgment.
You must first request that the trial court certify that there is probable cause for immediate appellate review of an issue. If the trial court does not make such an order sua sponte, then you have only ten days after the clerk serves the order deciding the bifurcated issue to notice a motion asking the trial court to certify that there is probable cause for immediate appellate review of the order. The motion must be heard within 30 daysafter the order deciding the bifurcated issue is served.
If the trial court grants the certification request, it may behoove you to ask the trial court to stay the balance of the case pending resolution by the Court of Appeal of the motion to appeal. Otherwise, certification for an immediate appeal could end up as a pyrrhic victory.
After the trial court certifies the order, you have only 15 days to file a formal motion asking the appellate court to grant review as well. This motion for the appellate court must contain a brief statement of the facts necessary to an understanding of the issue, a statement of the issue; and a statement of why, in the context of the case, an immediate appeal is desirable. (Cal. Rules of Court, Rule 5.392(d).)
Somewhat surprisingly, the rules require you to file a “sufficient partial record” for adequate appellate review along with this motion. This is tantamount to supplying most or all of an appellant’s appendix and the reporters’ transcripts with just this initial motion seeking leave to get into the appellate court to begin with. While counsel can provide a declaration summarizing evidence and oral proceedings when a transcript is not available, this is not only the less desirable option but also quite time-consuming to prepare.
Within 10 days after service of the appellate motion for review, an adverse party may serve and file an opposition to it. The motion to appeal and any opposition will be submitted without oral argument, unless otherwise ordered. Fortunately, the timeline for decision is quick: The motion to appeal is deemed granted unless it is denied within 30 days from the date of filing the opposition or the last document requested by the court. While denial of a motion to appeal is final and is not subject to rehearing, you can still petition for review by the Supreme Court.
If the motion to appeal is granted, the moving party is deemed an appellant, and the rules governing other civil appeals apply. The partial record filed with the motion will be considered the record for the appeal unless, within 10 days from the date notice of the grant of the motion is served, a party notifies the Court of Appeal of additional portions of the record that are needed for the full consideration of the appeal.
Fortunately, a litigant’s failure to seek early review of a decision on the bifurcated issue (or either court’s refusal to grant the request) does not prevent later review upon appeal of the final judgment. By that time, however, events may have rendered the appeal too costly to pursue or no longer useful.
There are, of course, plenty of other confusing wrinkles to the rule allowing certified appeals in bifurcated family law cases — such as when the trial court labels its order a “partial judgment,” or when a second judgment on reserved issues follows a “status only” dissolution. There are other ways to get immediate review of a pre-judgment ruling, such as filing a writ petition, and there are even other ways to ask the trial court to indicate that the case warrants interlocutory consideration. But these are issues for another day and another article.
Claudia Ribet is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. She is one of only three attorneys in California certified by the State Bar as a specialist in both family law and appellate law. Find out more about Claudia and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
This article is copyright © in the year of publication above.