Summary (1) Trial court erred in dismissing insured’s claim on demurrer based on the genuine-dispute doctrine. Application of the doctrine was a factual issue that could not be determined on the pleadings. (2) The insurer’s contractual right to arbitrate uninsured-motorist (“UM”) claims did not relieve it from its obligation to make reasonable efforts to assess and settle the claim, and its failure to make those efforts would support a claim against it for bad faith.
Summary – On a motion for summary judgment, it was concluded there was a question of fact whether a delay of six weeks in arranging for a specialist was reasonable, in Kotler the health care services plan denied two appeals by the patient that sought reimbursement for a specialist the patient saw on his own because of the delay. (Id. at pp. 956-957.)
This was the first case in California to hold that an HMO could be sued for bad-faith for making its subscribers wait an unreasonable amount of time for medical treatment.
This was the first ERISA case in the 9th Circuit to hold that an insurer’s dual role as plan administrator and insurer created a conflict of interest that tainted its decision-making.
Held that health insurers and HMOs in California were required to comply with California statutes that regulated the use of arbitration clauses in health-insurance contracts. Mr. Ehrlich later convinced other appellate courts to adopt the reasoning of Smith, in Imbler v. PacifiCare of California (2002) 103 Cal.App.4th 567, and Zolezzi v. PacifiCare of California (2003) 105 Cal.App.4th 573.
Mr. Ehrlich briefed and argued this case in the U.S. Supreme Court. In a unanimous decision the Supreme Court adopted the position advocated by Mr. Ehrlich, and limited ERISA’s preemptive scope by making ERISA plans subject to state common-law rules of insurance regulation, which generally benefit consumers. The Ward decision benefited more than 80 million people who obtained their health insurance, life insurance, or disability insurance through their employer.
Success on appeal in California depends on many things — the facts that underlie your case, the legal positions you can take in light of the state of the law, your skill in selecting and presenting the issues to the appellate court in a persuasive way, and the beliefs and proclivities of the appellate judges who will hear your case. But before any of these factors can have an impact on the appeal you plan to bring, you must first satisfy the most elemental aspects of any appeal — you must get the appeal on file timely, and you must provide the court with an appropriate record for appellate review. Unless you can accomplish these two basic tasks your appeal will fail. This article will explain how to satisfy these most basic of appellate rules.
The rules governing filing appeals and designating the record are technical, and involve some deadlines that are jurisdictional. This article provides an overview, but before any lawyer tries to file and proceed with an appeal, he or she should carefully review the relevant sections of the California Rules of Court, and would do well to consult an appellate treatise (or an appellate lawyer.) It’s not exactly a “don’t try this at home” situation; more like, “don’t try this without making sure you do it right.” The problem is not that it is particularly hard to comply with the rules; it is that if you fail to do so, for whatever reason, the result can be catastrophic for the case.
After her Toyota Camry was struck in a traffic collision by Olga Bello, Noriko Nori’s foot became trapped behind the brake pedal and was pressing on the accelerator pedal, causing her car to accelerate to 100 mph.
Ms. Nori was unable to control the vehicle and was killed when her car crashed into a tree. The jury awarded her heirs $10 million, and the defendants have appealed.
Getting a case from the pleading stage through trial can be like trying to walk through a minefield. There are always procedural traps lurking to snare the unwary trial lawyer. Here are 10 easy, and distressingly common mistakes for a trial lawyer to make, which can have disastrous consequences on appeal. Happily, they are easily avoided, if you know what to look for.
Mistake 2: Failing to make appropriate evidentiary objections on summary-judgment motions, or to respond to the other side’s objections
A motion for summary judgment or summary adjudication of issues must be supported and opposed by admissible evidence. (Code Civ. Proc., §§ 437c, subd. (b)(1), and (d); Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741, 74 Cal.Rptr.3d 715, 719.) As explained in the article in this issue by Justice Moore and Steven B. Stevens, objections to evidence in support of or in opposition to a motion for summary judgment or adjudication must follow the format in California Rules of Court 3.1352 and 3.1354.
Rule 8.121 (a) requires the appellant to file in the trial court a designation of the record on appeal within 10 days of filing a notice of appeal (although the designation can be combined with the notice of appeal). The rule contemplates a single document designating both the oral proceedings and the documents, usually the RT and a CT or Appendix. There is a Judicial Council form, APP 003, which is optional.
The notice designating the record must state when the appeal was filed, the form of the record of Superior Court documents (CT or Appendix), and the form of the oral proceedings (RT). If the appellant uses an RT, the designation must designate what proceedings it will contain. Rule 8.130(a)(1) requires that the notice specify the date of each proceeding to be included in the RT. Hence it is improper to designate “all oral proceedings”. A local rule in the Second Appellate District requires even more specificity — L.R. 3(a)(1) requires not only the date of each proceeding, but also the department, the name of the court reporter or electronic-recording monitor, and the nature of the proceeding.
The designation may specify the portions of designated proceedings that should not be transcribed. (Such as voire dire, or specific witnesses whose testimony was not relevant to the issues raised on appeal.) But if not all testimony will be designated, the notice must specify the points to be raised on appeal. (Rule 8.130(a)(2).) This enables the respondent to determine whether additional parts of the record must be transcribed. Designating less than all testimony limits the scope of appellate review to the points stated in the designation notice. (Rule 8.130(a)(2).) Copies of the notice of designation must be served on all other parties, and on all known court reporters.
If the appellant designates only part of the oral proceedings, then the respondent may file a notice of designation of additional proceedings within 10 days of service of the appellant’s designation. (Rule 8.130(a)(3).)
The designating party (that is, both the appellant and the respondent making a designation of additional proceedings) must make at the time the designation is filed a deposit for the approximate cost of transcribing the designated proceedings. There are two ways to compute this: (1) obtain a written estimate from the court reporter in advance, or (2) using the amounts specified in Rule 8.130(b)(1)(A) and (B): $325 for each proceeding of less than 3 hours, and $625 for each proceeding longer than 3 hours.
If the appellant files a notice electing to proceed via a Clerk’s Transcript, the respondent can trump that election by filing an election to use an appendix in lieu of the Clerk’s Transcript within ten days of the appellant’s election. (Rule 8.124.) At that point, the appeal will proceed using an appendix unless the Superior Court orders otherwise on a motion to oppose the election. (Id.)
If the appellate elects to use a Clerk’s Transcript, the election must designate the items to be included, specifically identifying each document by title and filing date. (Rule 8.122(a)(1).) It is sufficient to collectively designate all minute orders or all jury instructions given, refused, or withdrawn. (Rule 8.122(a)(1).) The designation may also specify parts of a document that need not be included — which can be handy if there are duplicates of other documents.) (Id.)
Optional documents in a Clerk’s Transcript or an Appendix include any document filed or lodged in the case in the Superior Court; any exhibit admitted in evidence, refused or lodged; any jury instructions submitted by a party or given or refused. (8.122(b)(3).)
What is a “protective cross-appeal” and when should I file one?
This is one of the nastier malpractice traps for lawyers. If the trial court vacates a judgment, or grants a motion for new trial or JNOV, you must file a protective or precautionary cross-appeal in order to preserve appellate review of the original judgment. So, if the court grants JNOV, the appellant will be the party who won a jury verdict, and the respondent will be the party who won the JNOV motion. If the appellant prevails, and convinces the court that the JNOV motion was granted in error, the original judgment will be reinstated. In order for the party who lost at that stage to preserve the right to appellate review of the original judgment, a protective cross-appeal must be filed after the “appellant” files the appeal from the JNOV and resulting judgment.
There are a couple more wrinkles — if the trial court denies a motion for JNOV but grants a new trial, or vacates the judgment, and there is an appeal from the new trial or order vacating the judgment, there must be a protective cross-appeal in order to preserve appellate review of the order denying the motion for JNOV. Also, if the party who is appealing a new-trial motion would also be aggrieved by the original judgment if it was reinstated after the new-trial motion was reversed, may file a protective cross-appeal to preserve the right to obtain review of the original judgment.
Mistake 5: Failing to make a timely request for a statement of decision in a bench trial
A statement of decision explains the factual and legal basis for the court’s decision. It supplements the record for appeal, allowing the reviewing court to examine the trial court’s reasoning on disputed issues to determine whether the appealed decision is supported by the evidence and the law. (Whittington v. McKinney (1990) 234 Cal.App.3d 123, 126, 127, 285 Cal.Rptr. 586.) Where no statement of decision is issued (either because it is not requested, or was waived by failure to make a timely request), the appellate court will apply the doctrine of implied findings; that is, it will presume on appeal that the trial court made all necessary factual findings to support the judgment. On appeal, the only issue will be whether there is sufficient evidence to support the judgment. (Michael U. v. Jaime B. (1985) 39 Cal.3d 787, 792-793, 218 Cal.Rtpr. 39.)
Happily, once you know what you need to appeal from, figuring out when you have to file the notice of appeal is usually straightforward. The rule governing the timing of the filing of a notice of appeal in most cases is Rule 8.104 of the Rules of Court. Rule 8.104(a) is titled “normal time.” It provides that unless a statute or Rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
- 60 days after the Superior Court clerk serves the party filing the notice of appeal with a document titled “notice of entry” of judgment or a file-stamped copy of the judgment showing date that either was served;
- 60 days after the party filing the notice of appeal serves or is served by a party with a document titled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or
- 180 days after entry of judgment.
Remember, for the purposes of this rule the term “judgment” includes an appealable order. (Rule 8.104(f).)
The Rule defines what “entry” means. (Rule 8.104(d).) It means the date a judgment is filed under Code Civ. Proc. § 668.5 or the date it is entered in the judgment book. For an appealable order, it means the date of entry in the permanent minutes, but if the minute order directs that a written order will be prepared, then the entry date is the date that the signed order is filed. (Note — that a written order prepared as required by Rule 3.1312 [which requires the prevailing party to submit a written order within 5 days of the ruling] is not deemed an order prepared by direction of a minute order.) (Rule 8.104(d)(2.)
Court clerks are required to serve orders in certain family law and probate matters. But in most civil cases, it will be a party who serves a notice of entry. So, your time to appeal will be 60 days from service of service of the notice.
Remember: Service of a file-stamped copy has the same effect of a notice of entry — they both trigger the deadline to file a notice of appeal.
“Extended Time” CRC Rule 8.108
Rule 8.108 extends the time to appeal in five situations. By its terms, it operates only to extend the time to appeal otherwise prescribed in Rule 8.104 — it never shortens the time available to file a notice. So, if the normal time to appeal stated in Rule 8.104 is longer than the extended time allowed in Rule 8.108, then the normal time prescribed in Rule 8.104 governs. (Rule 8.108(a).)
“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy.” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)
The flip side of the one-final judgment rule is Rule 1, above — that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”)§ 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)
The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.
There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.
Mistake 7: Failing to get the proponent of each proposed instruction on the record
Jury instructions are often hashed out in chambers, in a hurry, shortly before the jury is instructed. If you are not satisfied with any of the final instructions the court has decided to give, be sure that you get the trial court to make a proper record of court’s ruling on jury instructions, either by going on the record or by issuing a minute order. Make sure that the record accurately reflects the proponent of each instruction – you do not want to be accused of inviting error for an instruction you did not propose. Make sure the record reflects the judge’s ruling and rationale, as well as your objections. If the instruction is too general, incomplete, or vague, both object and propose language to cure the problem. (Civil Trials, ¶ 14:225.)