Appeals, writs and summary judgment

Summary adjudication is a powerful tool for narrowing the scope of a case before trial. But the rules for obtaining appellate review of a summary adjudication ruling can be a trap for the unwary: They differ depending on whether the court granted or denied summary adjudication, and especially when it comes to a denial, there are tight deadlines to keep in mind.

First, the basics: An order granting or denying summary adjudication is not directly appealable because it does not dispose of the entire case nor does it appear on the list of appealable orders set forth in Code of Civil Procedure Section 904.1. An order granting or denying summary adjudication is, however, reviewable by a petition for a writ of mandate under Code of Civil Procedure Section 437c(m).

Filing a writ petition does not guarantee that the Court of Appeal will reach the merits of the summary adjudication ruling - review by writ petition is discretionary, and only a small percentage of petitions are granted. But a summary adjudication ruling may be a good candidate for writ review if it is clearly erroneous and a correct ruling would have substantially changed the scope of the case to be tried.

Time is of the essence when it comes to seeking writ review of a summary adjudication ruling. A writ petition must be filed within 20 days after service of written notice of entry of an order granting or denying the motion. Code Civ. Proc. Section 437c(m)(1). The time can be extended slightly - for example, service by overnight delivery or fax adds two days, service by mail within California adds five days, and the superior court has the power to extend the deadline by up to 10 days for good cause. But even with these extensions, a party planning to pursue a writ petition must act quickly.

Given the tight deadlines involved and the low chance of having a writ petition granted, parties may find themselves asking whether a writ petition is necessary - that is, is it the only way to challenge a summary adjudication ruling? The answer: It depends.

Where the trial court grants summary adjudication on some claims and the rest of the claims proceed to trial, the aggrieved party has two options. It can file a writ petition within the statutory deadline, or it can wait until the end of the entire case, and then seek review of the interim summary adjudication order as part of an appeal from the final judgment.

The 4th District Court of Appeal, Division One's recent decision in Angelica Textile Services, Inc. v. Jaye Park, 2013 DJDAR 13701 (Oct. 15, 2013) illustrates the latter approach. There, a laundry company sued its former employee and a new competing business under the Uniform Trade Secrets Act and various common law theories. The trial court granted the defendants' motion for summary adjudication on all of the plaintiff's common law causes of action, finding that they were displaced by the Trade Secrets Act. The trade secrets cause of action proceeded to trial and the jury resolved it in favor of the defendants. The plaintiff then appealed from the judgment. The appeal did not challenge the jury verdict. Instead, it argued only that the pre-trial summary adjudication ruling was erroneous because the Trade Secrets Act did not displace the common law causes of action.

The Court of Appeal reversed the pre-trial grant of summary adjudication and remanded the case for further proceedings. In so doing, it rejected the defendants' argument that the ruling was not reviewable on appeal from a final judgment and that a writ petition was the exclusive avenue for review. The court explained that while a party can seek review via writ petition, the summary judgment statute does not require that it do so.

Angelica Textile Services permits a wait-and-see approach after the grant of summary adjudication. The route to appellate review is less straightforward, however, when it comes to an order denying summary adjudication. Although some courts have reviewed interim summary adjudication denials as part of an appeal at the end of the case, not all courts will do so.

The rationale for reviewing a pre-trial summary adjudication denial at the end of a case is that under Code of Civil Procedure Section 906, an appeal from a final judgment permits the Court of Appeal to review all intermediate rulings that "involve[] the merits or necessarily affect[] the judgment or order appealed from or which substantially affect[] the rights of a party." See, e.g., Coy v. County of Los Angeles, 235 Cal. App. 3d 1077, 1082 n.2 (1991).

But at least one published decision has held that an appeal from a final judgment does not permit the reviewing court to consider an interim order denying summary adjudication. Sierra Craft, Inc. v. Magnum Enterprises, Inc., 64 Cal. App. 4th 1252 (1998). And while that decision's rationale is questionable (it describes the summary judgment statute as providing that review is only available by writ petition, but the statute does not explicitly say that), relying on a post-trial appeal is perilous for another reason: As Transport Ins. Co. v. TIG Ins. Co., 202 Cal. App. 4th 984 (2012), recently pointed out, the denial of summary adjudication on a claim will rarely be prejudicial once the parties have fully litigated the claim at trial. That is significant because the Court of Appeal cannot reverse a judgment without a showing of prejudice.

The bottom line is that any party aggrieved by a summary adjudication ruling-whether a grant or a denial - should immediately consider whether to petition for writ review. A writ petition may be the only way to get review of an order denying summary adjudication. And while the grant of summary adjudication is reviewable either by writ or by appeal, waiting too long means that the decision will be made for you: The writ petition deadline comes up quickly, and once the deadline passes, there is no choice but to wait for a post-trial appeal.