The basics of California Appeals — two not-so-simple rules (Part 5)

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).)

The basics of California Appeals — two not-so-simple rules (Part 4)

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.

10 Common mistakes that trial lawyers make (Part 3)

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.)

The basics of California Appeals — two not-so-simple rules (Part 3)

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:

  1. 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;
  2. 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
  3. 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).)

The basics of California Appeals — two not-so-simple rules (Part 2)

“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.

10 Common mistakes that trial lawyers make (Part 4)

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.)

Common reasons that plans deny care and what you can do about it

Most plans — whether HMOs or insured plans, deny care for one of four reasons:

  • The patient went “out of plan” to receive care, instead of following the plan’s rules and seeing a provider who has a contract with the plan;
  • The services requested were determined not to be “medically necessary;”
  • The services requested were determined to be “experimental or investigational;”
  • The services were simply not covered by the plan — for example, almost all plans exclude coverage for cosmetic procedures, and so would not cover a face lift or breast-augmentation surgery.

Here are some things you can do about unfairly denied insurance claims.

The genuine-dispute doctrine after Wilson v. 21st Century Ins. Co.

The genuine-issue defense was first announced in Safeco Ins. Co. of America v. Guyton (9th Cir. 1982) 692 F.2d 551, an appeal from a judgment awarding declaratory relief to the insurer, finding that it owed no coverage for property damage caused by heavy rains. The Ninth Circuit found that the district court had misapplied the doctrine of concurrent causation, and reversed its finding of no coverage. But the court affirmed summary judgment of the insured’s counterclaim for bad faith, explaining:

Although the district court did not specify the grounds on which it entered judgment for Safeco on this cause of action, it may have concluded that since the policy in dispute involved a genuine issue concerning legal liability, Safeco could not, as a matter of law, have been acting in bad faith by refusing to pay on the Policyholders’ claims. Although we conclude that the Policyholders’ losses are covered by the policy if third-party negligence is established, we agree that there existed a genuine issue as to Safeco’s liability under California law. We therefore affirm the dismissal of the Policy-holders’ claims of bad faith.

(692 F.2d at 551, emphasis added.)

The genuine-dispute doctrine after Wilson v. 21st Century Ins. Co. (Part 2)

Wilson was an underinsured-motorist (UIM) bad-faith case. The claimant, Regan Wilson, was a 21-year old woman who suffered neck injuries in an auto accident when she was struck by a drunk driver. She demanded policy limits of $100,000 from her UIM carrier.

Wilson’s demand was based on the opinion of her treating orthopedic surgeon, Dr. Southern, who, based on x-rays and an MRI, found that she suffered changes in her cervical spine that were atypical for a woman her age and were the result of the trauma. He also opined she would suffer degenerative disk changes as a result of her injury. Wilson went on a long-planned backpacking trip in Europe after the accident. Her attorney told 21st Century that her neck pain ruined the trip. He also told the carrier that she was planning to study in Australia for a year.

21st Century did not obtain an independent medical examination, or speak to Dr. Southern. Based on its adjuster’s view that Wilson had only suffered soft-tissue injuries and had a preexisting degenerative illness, it offered her $5,000 in med-pay benefits, which it contended, when added to the $15,000 she had received from the other driver, would fully compensate her.

When the case would not settle, Wilson commenced arbitration proceedings. She continued to treat with various doctors as the case moved forward. When 21st Century learned during her deposition that one of her doctors recommended surgery, it sought an independent medical examination. Its IME doctor found injuries that warranted surgery, and 21st Century paid the balance of its $100,000 policy, less a $15,000 credit for the amount Wilson recovered from the other driver.

The genuine-dispute doctrine after Wilson v. 21st Century Ins. Co. (Part 3)

Wilson’s principal impact is felt in two ways. First, the Court’s powerful statement and reliance on the insured’s duty to conduct a fair, thorough investigation is significant. While technically, the Court merely restated the law on this point, it did so in a way that not only reaffirmed the insurer’s obligation to investigate fully before denying a claim, it strengthened it.

Second, the Court refocused the inquiry in summary-judgment proceedings. Before Wilson, many courts would determine that there was a genuine dispute if the insurer relied on experts, or if there simply was a difference of opinion between the carrier and the policyholder. In the absence of affirmative proof that the carrier’s position was held in bad faith, the courts would find that the existence of the dispute was sufficient to trigger application of the doctrine. This was why the genuine-issue defense had become so powerful and so frequently asserted. Carriers and claimants seldom are in complete agreement about all aspects of a claim. The genuine-dispute doctrine allowed carriers to avoid bad-faith liability simply by disagreeing with the insured in some fashion.

This no longer works after Wilson, because the issue is now whether a jury could find that plaintiff’s view of the claim was correct. The mere existence of a dispute is no longer sufficient; to obtain summary judgment, the record must be sufficient to allow the trial court to find that no reasonable jury could accept the view of the plaintiff or the plaintiff’s experts.

The ever-expanding genuine-dispute doctrine, and how to deal with it

The genuine-dispute doctrine has become the legal equivalent of kudzu – an invasive species known for its explosive growth. This doctrine has become the first line of defense relied on by insurance companies who have been sued for insurance bad-faith in California. As originally adopted it was a tool that allowed trial courts to grant summary judgment in appropriate first-party, bad-faith cases, when there was a “genuine dispute” about the controlling legal principles that governed the claim. But in the last five or six years, its use has expanded to virtually every aspect of bad-faith litigation.

Jeffrey I. Ehrlich retained to argue $48.1 million products-liability lawsuit

April 2013

Plaintiff Christopher Trejo took Motrin and developed toxic epidermal necrolysis (TEN), a reaction that produces burn-like injuries to the skin and mucous membranes.

The jury awarded him $48.1 million in compensatory and punitive damages against the makers of Motrin, McNeil-PPC, Inc. and Johnson & Johnson.

The defendants have appealed. Trejo’s appellate counsel has retained Ehrlich to argue the appeal, which is pending in the California Court of Appeal for Second Appellate District.

The ever-expanding genuine-dispute doctrine, and how to deal with it (Part 2)

In an attempt to develop broadly applicable rules the courts have focused more on the process that the carriers used to reach a coverage decision, rather than on the decision itself. Carriers are told that if they based their coverage decision on a fair investigation, or upon the advice of unbiased experts, then their decision cannot be characterized as having been made in bad faith.

The ever-expanding genuine-dispute doctrine, and how to deal with it (Part 3)

The ever-expanding genuine-dispute doctrine, and how to deal with it (Part 3) page 3 Advocate. August 2007 | Download .pdf By Jeffrey I. Ehrlich Next Page | 1 | 2 | 3 | 4 | Previous Page Some good news Not all the news on the genuine-issue front is bad, however. There are two Ninth Circuit decisions that offer clear […]

The ever-expanding genuine-dispute doctrine, and how to deal with it (Part 4)

Until the Supreme Court says otherwise, if you litigate bad-faith cases you will have to deal with the genuine-dispute doctrine. Know the relevant genuine-dispute cases and take pains to plead and to develop your case in a way that will allow you to raise the factual concerns that they discuss. Most important, keep the focus of the trial court’s inquiry on the central issue in any bad-faith case – whether the carrier’s conduct was reasonable. If you have done a careful job of evaluating the case before you agree to take it, if you have pleaded the case carefully, and have directed your discovery efforts to the critical pressure points in all genuine-dispute cases, you stand a good chance of convincing the trial court whether the carrier acted reasonably is a factual issue that only the fact finder can resolve.