Page 1

Court of Appeal:

Denial of Motion for Summary Judgment Is Not Appealable

Fourth District’s Div. Three Repudiates Contrary Authority From Los Angeles-Based Panel

By a MetNews Staff Writer

An order denying a motion for summary judgment is not appealable under the collateral order doctrine because it does not direct the would-be appellant to do anything, Div. Three of the Fourth District Court of Appeal held yesterday, repudiating a decision by this district’s Court of Appeal saying that the California Supreme Court has apparently abandoned a restriction on an application of the doctrine.

“An order denying summary judgment does not direct payment of money or performance of an act, and therefore cannot be appealable under California’s collateral order doctrine,” Justice Thomas A. Delaney said in yesterday’s opinion, which dismisses an appeal.

His opinion rejects the reasoning set forth by then-Justice Madeleine Flier, now retired, in her March 27, 2009 decision for this district’s Div. Eight in Muller v. Fresno Community Hospital & Medical Center.

Flier’s View

Flier observed that there is an “apparent inconsistency in the Supreme Court’s treatment of the limitations on the collateral order doctrine,” inferring:

“When the order does not require a payment of money or the performance of an act, the Supreme Court will find the order appealable without reference to these limitations, as long as the court is satisfied that the order is truly collateral….

“This suggests that the supposed limitations of a payment of money and the performance of an act are in actuality indications that the order in question is collateral to the main action.”

Before Div. Eight was an appeal from Los Angeles Superior Court Judge Cesar C. Sarmiento’s denial of a motion for monetary sanctions, which the appeals court affirmed. Flier said: “We do not hold that generally all orders denying motions for sanctions are appealable as collateral orders. In this case, there is no judgment and there may never be a judgment. Under these circumstances, the order denying the motion for sanctions is appealable as a collateral order.”

Delaney’s Opinion

Delaney noted that subsequent to the opinion in Muller, “California courts describing the collateral order doctrine have largely” stuck to the traditional view, “often without acknowledging the split in authority or taking a side.” He remarked:

“Appellant has not provided us with a single published California case in which an order denying summary judgment, on any topic, was held to be an appealable collateral order. Nor could we find one.”

He pointed out that Code of Civil Procedure §437c(m)(1) provides that where a motion for summary judgment is denied, “a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ.” The justice commented:

“[T]he existing writ procedure provides meaningful review for litigants like defendant. We are skeptical that abandoning this approach would do more good than harm. Fortunately, California law does not compel us to do so.”

Federal Decisions

Flier said in Muller:

“It is surely of some significance that the rather considerable body of federal law on the collateral order doctrine…makes absolutely no mention of the limitations on the collateral order doctrine….In other words, the collateral order doctrine has functioned in the federal courts without these limitations since its inception in 1949.

“The fact is that these supposed limitations on the collateral order doctrine do not really speak to the fundamental concepts behind this doctrine.”

Delaney expressed disagreement as to the significance of the federal view, explaining that there is a “more limited availability of civil writ relief in federal court.” He reasoned that “California’s more generous writ review process allows it to adopt a narrower collateral order doctrine.”

The case is Longobardo v. Avco Corporation, 2023 S.O.S. 2383.