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

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

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By Jeffrey I. Ehrlich, 2010 | Download .doc

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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.

How to comply with Rule 1, step 3— Preparing and filing a valid notice of appeal

A valid notice of appeal must identify the order of judgment, or particular part of a judgment being appealed, should specify who is appealing, and must be signed by the appellant or the appellant’s attorney. (Rule 8.100a.) There is a Judicial Council form, APP 002, which is optional. A notice of appeal does not have to identify prior non-appealable orders embraced within the final judgment. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 668.) But the notice must specify all appealable orders or judgments that are being appealed. This means that, ordinarily, an appealable post-judgment order issued after an appeal has been filed must be the subject of a separate notice of appeal. One exception is for routine costs of suit or attorney’s fees awarded in a judgment, that will be determined in post-judgment proceedings. A notice of appeal from the judgment will subsume these proceedings, and a separate appeal is not necessary. (See Civil Appeals at § 3.119.1 et seq. for a complete discussion of this somewhat tricky area.)

The notice of appeal is filed in the Superior Court; not the Court of Appeal. (Rule 8.100(a)(1).) The notice of appeal generally takes two filing fees: (1) a $655 filing fee payable to the Clerk, Court of Appeal; and (2) a $100 “deposit” payable to the clerk of the Superior Court, for preparation of the Clerk’s Transcript. This fee must be paid even if the parties use an appendix, and is not required to be refunded. (Civil Appeals says that some courts will return the deposit if an election to use an appendix is made. Id. § 3:149.)

Rule 2:  Provide the reviewing court with a sufficient record

A. What is “the record?”

Errors are not presumed on appeal; to the contrary, appealed judgments and orders are presumed correct, and the burden lies with the appellant to overcome this presumption and to demonstrate error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)

“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. The County of Merced (2003) 110 Cal.App.4th 362, 364.)

The “appellate record” is the aggregate information provided to the reviewing court that will allow it to determine whether or not the court below committed error that warrants some kind of intervention. It is comprised of two components: the oral proceedings before the trial court, which have usually been transcribed verbatim by the court reporter; and a compilation of the relevant documents submitted to the trial court. These documents include pleadings, motions, and supporting evidence (either admitted, or rejected).

Oral proceedings are usually transcribed by the court reporter, who will put them into a reporter’s transcript (“RT”). In rare circumstances, when an RT is not available, the parties will either have the trial court determine what occurred (a settled statement) or provide an agreed statement of proceedings. (See, Civil Appeals § 4:12 et seq.)

The two most common ways to provide the reviewing court with the trial court documents are a Clerk’s Transcript (“CT”), prepared by the Superior Court Clerk using a designation submitted by the parties, or an Appendix in lieu of a Clerk’s Transcript — essentially the same thing, but prepared by the parties.

The three most common choices for the record on appeal:

  • Both the RT and the Clerk’s Transcript;
  • Both the RT and an Appendix in lieu of Clerk’s Transcript;
  • Only an Appendix or Clerk’s Transcript.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

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