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

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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.

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.

How to comply with Rule 1, Step 1— Know what to appeal

“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.

The most common appealable orders listed in section 904.1 are these:

  • From a judgment
  • From an order after final judgment (such as an order awarding attorney’s fees post-trial)
  • From an order granting a new trial, or denying a motion for judgment notwithstanding the verdict
  • From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction
  • From a sanctions order directing the payment of more than $5,000
  • From an order granting or denying an “Anti-SLAPP” motion under Code Civ. Proc. section 416.26
  • From an order appointing a receiver
  • From an order granting a right-to-attach order or discharging or refusing to discharge an attachment.

Note that the term “judgment” in section 904.1 includes an appealable order. (See CRC, Rule 8.104(f).) An order of dismissal, for example, is appealable when it is in writing, signed by the court, and filed in the action. (Code Civ. Proc. § 581d.) But an order sustaining a demurrer without leave to amend is not an appealable order. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) Rather, the appeal lies from the order of dismissal made following the order sustaining the demurrer. (Id.) “But when the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 544.) Courts generally only invoke this rule to save a premature appeal. But it could conceivably be used to argue that an appeal was untimely in a case where the only order issued was the order sustaining the demurrer, and no dismissal was entered.

Similarly, a statement of decision is generally not an appealable order. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) This is because courts generally embody their final rulings in orders or judgments, not a statement of decision. (Id.) But if a written statement of decision is signed and filed, and satisfies the requirements of Code Civ. Proc. § 581d, it can be treated as appealable order if no further order or judgment follows. (Id.)

The list of appealable orders in section 904.1 is not exhaustive, unfortunately. The Family Code and the Probate Code have specific provisions that make certain orders appealable. So too does the Code of Civil Procedure, such as section 1294, which makes orders denying or dismissing a petition to compel arbitration, or dismissing a motion to confirm, correct or vacate an arbitration award appealable.

There are also common-law rules that make some orders appealable. For example, a “death knell” order that denies certification of a class action, or that disposes of an entire class action (such as an order sustaining a demurrer to class allegations) is deemed “final” and is immediately appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 184 [denying class certification]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rprt. 724, 728 [same]; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957, 93 Cal.Rprt.2d 413, 416, fn. 1 [demurrer to class allegations].) The death-knell doctrine is therefore deemed part of the one-final judgment rule, not an exception to it.

In general, the law recognizes two general exceptions to the one final judgment rule: (1) a “collateral” final judgment or order, or (2) a judgment final as to a party. (“Civil Appeals” § 2.76.) The latter exception occurs frequently — when one party is simply dismissed from a case that goes on as the remaining parties. If you are the plaintiff and one of the defendants is dismissed, you must appeal at the time; not from the ultimate “final” judgment.

The definition of a “collateral order” is a bit more involved, and beyond the scope of this presentation. In general, it requires that three conditions be satisfied: (1) the order directs the performance of an act or the payment of money; (2) the order involve an issue that is wholly collateral to the main issue in the case; and (3) as to that collateral issue, the order is final. (Civil Appeals, § 2.77.)

Ultimately, every time an order is issued, the trial lawyer must consider whether it could be considered “final” and appealable, or within an exception to the one-final judgment rule, or subject to review by statutory writ.

How to comply with Rule 1, step 2 — Know when to file the appeal

“Normal Time” CRC Rule 8.104

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).)

These are the five situations governed by Rule 8.108:

  1. Motion for new trial
  2. Motion to vacate judgment
  3. Motion for JNOV
  4. Motion to reconsider an appealable order
  5. Cross appeal.

Here is how they work.

New trial motion: If a party files a valid intention to move for a new trial, the time to appeal from the judgment is extended for all parties, as follows: (1) if the motion is denied, until the earliest of (a) 30 days after the clerk mails, or a party serves, an order denying the motion or a notice of entry of the order; (b) 30 days after the motion is denied by operation of law; or (c) 180 days after entry of judgment. (2) If a party accepts a conditionally-ordered additur or remittitur, until 30 days after the date the party serves the acceptance.

Motion to vacate judgment: If within the time to appeal prescribed by Rule 8.104 to appeal from a judgment a party serves and files a valid notice of intention to move — or a valid motion — to vacate the judgment, the time to appeal is extended for all parties to the earliest of: (1) 30 days after the clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; (2) 90 days after the first notice of intention to move — or motion — is filed; (3) 180 days after entry of judgment.

Motion for JNOV: If any party serves and files a valid JNOV the time to appeal from a judgment is extended for all parties until the earliest of: (1) 30 days after the clerk mails or a party serves and order denying the motion or notice of entry of that order; (2) 30 days after denial of the motion by operation of law; or (3) 180 days after entry of judgment.

Motion to reconsider appealable order: If any party files and serves a valid motion under Code Civ. Proc. § 1008 to reconsider an appealable order, the time to appeal is extended for all parties to the earliest of: (1) 30 days after the clerk mails or a party serves and order denying the motion or notice of entry of that order; (2) 90 days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order.

Cross-Appeal: (1) If an appellant timely appeals from a judgment or an appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the Superior Court Clerk mails notice of the first appeal; (2) If an appellant timely appeals from an order granting a new trial; an order granting — within 150 days after entry of judgment — a motion to vacate the judgment, or a motion for jnov; the time for any other party to appeal from the original judgment or from an order denying a motion for jnov is extended until 20 days after the clerk mails notification of the first appeal.

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.

B. Designating the Record on Appeal

1. The mechanics

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).)

2. Judgment calls — what should you include?

You must include everything necessary for the appellate court to understand what occurred in the trial court, and to evaluate whether it constituted an error, and whether that error was prejudicial. As the appellant, if you fail to provide the appellate court with this information, you will lose the appeal. You should not, however, burden the court with more than it needs to do its work properly. In extreme circumstances, lawyers who thoughtless include more in the record than properly belongs there can be subject to sanctions. (Rule 8.276(a)(2).)

The rules specify certain items that must be included in every Clerk’s Transcript, whether designated or not, and which must therefore also be included in any appendix in lieu of a clerk’s transcript. These include the notice of appeal; the order or judgment appealed from and any notice of its entry; any notice of intention to move for new trial, JNOV, or reconsideration of an appealable order, together with their supporting and opposing memorandum and exhibits, and any order thereon; notices or stipulations concerning preparation of the reporter’s transcript; and the register of actions, if there is one. (Rule 8.122(b)(1); 8.124(b)(1)(A).)

If your appeal follows the trial court granting a demurrer or a summary-judgment motion, deciding what to include in the record is easy — you put in the operative pleadings, all documents filed by the parties in support of, or opposition to, the motion or demurrer, and the order resolving the motion or demurrer. If the appeal follows a jury trial, it can be harder to decide what to include. Although all exhibits are automatically part of the record, it makes sense to include the key exhibits in the CT or Appendix so the court has ready access to them. All minute orders entered during the trial are also a good idea, because they show what happened each day, and sometimes may be the only evidence of orders the court made.

Many lawyers automatically include an RT of law-and-motion hearings, but I do not recommend this unless something happened at the hearing that has particular significance to the appeal — such as a lawyer making a concession on the record, or the trial court making a particularly intemperate comment that is indicative of bias. Appellate courts do not review a trial court’s reasoning, only the correctness of its decision. In almost all cases, nothing that happens in a law-and-motion hearing has any bearing on the appeal because the court will simply look at the motion and the evidence in support and in opposition, and decide whether it was properly granted given the appropriate standard of review.

Categories: Articles & Briefs

Appellate Passion: Jeffrey Ehrlich has helped set precedent, but he’s proudest of getting one man out of prison.
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