Rule 5.392. Interlocutory appeals
This rule does not apply to appeals from the court's termination of marital status as a separate issue, or to appeals from other orders that are separately appealable.
(Subd (a) amended effective January 1, 2003; previously amended effective January 1, 1994.)
(b) Certificate of probable cause for appeal
(1)The order deciding the bifurcated issue may include an order certifying that there is probable cause for immediate appellate review of the issue.
(2)If it was not in the order, within 10 days after the clerk serves the order deciding the bifurcated issue, a party may notice a motion asking the court to certify that there is probable cause for immediate appellate review of the order. The motion must be heard within 30 days after the order deciding the bifurcated issue is served.
(3)The clerk must promptly serve notice of the decision on the motion to the parties. If the motion is not determined within 40 days after serving the order on the bifurcated issue, it is deemed granted on the grounds stated in the motion.
(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 2002, and January 1, 2003.)
(c) Content and effect of certificate
(1)A certificate of probable cause must state, in general terms, the reason immediate appellate review is desirable, such as a statement that final resolution of the issue:
(A)Is likely to lead to settlement of the entire case;
(B)Will simplify remaining issues;
(C)Will conserve the courts' resources; or
(D)Will benefit the well-being of a child of the marriage or the parties.
(2)If a certificate is granted, trial of the remaining issues may be stayed. If trial of the remaining issues is stayed, unless otherwise ordered by the trial court on noticed motion, further discovery must be stayed while the certification is pending. These stays terminate upon the expiration of time for filing a motion to appeal if none is filed, or upon the Court of Appeal denying all motions to appeal, or upon the Court of Appeal decision becoming final.
(Subd (c) amended effective January 1, 2003; previously amended effective January 1, 2002.)
(d) Motion to appeal
(1)If the certificate is granted, a party may, within 15 days after the court serves the notice of the order granting it, serve and file in the Court of Appeal a motion to appeal the decision on the bifurcated issue. On ex parte application served and filed within 15 days, the Court of Appeal or the trial court may extend the time for filing the motion to appeal by not more than an additional 20 days.
(2)The motion must contain:
(A)A brief statement of the facts necessary to an understanding of the issue;
(B)A statement of the issue; and
(C)A statement of why, in the context of the case, an immediate appeal is desirable.
(3)The motion must include or have attached:
(A)A copy of the decision of the trial court on the bifurcated issue;
(B)Any statement of decision;
(C)The certification of the appeal; and
(D)A sufficient partial record to enable the Court of Appeal to determine whether to grant the motion.
(4)A summary of evidence and oral proceedings, if relevant, supported by a declaration of counsel may be used when a transcript is not available.
(5)The motion must be accompanied by the filing fee for an appeal under rule 8.100(c) and Government Code sections 68926 and 68926.1.
(6)A copy of the motion must be served on the trial court.
(Subd (d) amended effective January 1, 2017; previously amended effective January 1, 2002, January 1, 2003, and January 1, 2007.)
(e) Proceedings to determine motion
(1)Within 10 days after service of the motion, an adverse party may serve and file an opposition to it.
(2)The motion to appeal and any opposition will be submitted without oral argument, unless otherwise ordered.
(3)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, whichever is later.
(4)Denial of a motion to appeal is final forthwith and is not subject to rehearing. A party aggrieved by the denial of the motion may petition for review by the Supreme Court.
(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2002, and January 1, 2003.)
(f) Proceedings if motion to appeal is granted
(1)If the motion to appeal is granted, the moving party is deemed an appellant, and the rules governing other civil appeals apply except as provided in this rule.
(2)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.
(3)If a party notifies the court of the need for an additional record, the additional material must be secured from the trial court by augmentation under rule 8.155, unless it appears to the Court of Appeal that some of the material is not needed.
(4)Briefs must be filed under a schedule set for the matter by the Court of Appeal.
(Subd (f) amended effective January 1, 2017; previously amended effective January 1, 2002, January 1, 2003, and January 1, 2007.)
(g) Review by writ or appeal
The trial court's denial of a certification motion under (b) does not preclude review of the decision on the bifurcated issue by extraordinary writ.
(Subd (g) amended effective January 1, 2003; previously amended effective January 1, 2002.)
(h) Review by appeal
None of the following precludes review of the decision on the bifurcated issue upon appeal of the final judgment:
(1)A party's failure to move for certification under (b) for immediate appeal;
(2)The trial court's denial of a certification motion under (b) for immediate appeal;
(3)A party's failure to move to appeal under (d); and
(4)The Court of Appeals denial of a motion to appeal under (d).
Rule 5.392 renumbered effective January 1, 2017; adopted as rule 1269.5 effective July 1, 1989; previously amended and renumbered as rule 5.180 effective January 1, 2003; previously amended effective January 1, 1994, January 1, 2002, January 1, 2007, and January 1, 2013.