The basics of California Appeals — two not-so-simple rules

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

By Jeffrey I. Ehrlich, 2010 | Download .doc

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Landmark California AppealsSuccess 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.

Rule 1: File the notice of appeal on time

Many of the deadlines built into the law have a certain amount of flexibility. If good cause exists, the failure to meet the deadline can often be excused under section 473 of the Code of Civil Procedure, or its equivalent provisions in the California Rules of Court. Rule 8.60(d) of the Rules of Court allows a reviewing court, for good cause, to relieve a party from default from any failure to comply with the rules — “except the failure to file a timely notice of appeal.” Likewise, 8.104(b) states that no court can extend the time to file a notice of appeal, and that “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” The only exception to this is when there is a declared public emergency, such as a fire or an earthquake. (CRC, Rule 8.66.)

The timely filing of a notice of appeal is a jurisdictional prerequisite. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) Accordingly, “unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (Id.) Don’t get too excited about the concept of a “constructively filed” notice of appeal. That rule only applies in appeals by self-represented litigants in criminal custody, and holds that their appeals are deemed constructively filed when presented to the prison authorities within the normal deadline for filing an appeal. (See, e.g. Silverbrand, 46 Cal.4th at pp. 114 -120 [detailing history of prison-delivery rule and applying it to civil appeals as well as criminal cases].)

Filing the appeal timely does not sound so hard, and it often is not. But it can be tricky in some cases for two reasons: (1) it is not always clear what orders are appealable and what orders are not; and (2) the deadlines themselves are sometimes less than straightforward.

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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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