..Cases and Materials on California Civil Procedure, 3d ed. (ThomsonWest 2008) All Rights Reserved

..................................................................................Chapter 8: Appellate Review

* p. 836, near top of page, after citation to 2007 Court Statistics Report: For the 2007--2008 fiscal year, there were 25,199 filings in the Courts of Appeal (about 33% of which were civil). See 2009 Court Statistics Report, Statewide Caseload Trends 1998-1999 through 2007-2008 at p. IX (Judicial Council of California).

* p. 836, end of first full paragraph: In 2007-2008, a total of 5,903 petitions for review were filed with the California Supreme Court. See 2009 Court Statistics Report, Statewide Caseload Trends 1998--1999 through 2007--2008 at p. IX (Judicial Council of California).

p. 836, near top of page, after citation to 2007 Court Statistics Report: In 2006-2007, the total number of Court of Appeal filings (notices of appeal and original proceedings) increased to 24,934. Of that number, approximately 35% were civil filings. The statewide median time from notice of appeal to the filing of an opinion in civil appeals was 432 days. See 2008 Court Statistics Report, Statewide Caseload Trends 1997-1998 through 2006-2007 at pp. IX, 17 (Judicial Council of California).

p. 836, end of first full paragraph: The total number of petitions for review filed in the Supreme Court in 2006-2007 was 5,108 (compared to 5,397 in 2005-2006). Of that total, approximately 27% were civil petitions. 2008 Court Statistics Report, Statewide Caseload Trends 1997-1998.

..........................................................................A. Right to Appeal
p. 836, new second paragraph, bottom of page: The Court of Appeal notifies the superior court that the appellate judgment is final and appellate jurisdiction terminated via a remittitur. In rare circumstances, the remittitur may be recalled and the appeal reinstated, such as, for example, when the appellate judgment resulted from fraud or mistake. In re Grunau, 169 Cal.App.4th 997, 86 Cal.Rptr.3d 908 (2008). For additional information on remittitur and recall, and their effect on appellate jurisdiction, see Benjamin G. Shatz, Sex, Lies and Remittitur, San Francisco Daily Journal at 7 (Jan. 15, 2009).

.............................................................................B. Appealability
1. Appealable Judgments and Orders
.....(a) One Final Judgment Rule
* p. 844, end of Note 1: See also Canandaigua Wine Co., Inc. v. County of Madera, 177 Cal.App.4th 298, 99 Cal.Rptr.3d 264 (2009) (relying on Morehart, appeal from order resolving one of several causes of action in petition for writ of administrative mandamus dismissed because order did not fully dispose of entire action and factual issues remained).

p. 845, Note 3(g), following Conley cite: An order denying certification of a class action is considered a final order subject to immediate appeal under the "death knell doctrine." The appeal is permitted because "the action has in fact and law come to an end, as far as the members of the alleged class are concerned." The parameters of the death knell doctrine are narrowly defined to encompass only orders denying class certification. The doctrine does not apply to other class action orders, such as orders granting certification or directing service of notice to class members. Farwell v. Sunset Mesa Property Owners Association, Inc., 163 Cal.App.4th 1545, 78 Cal.Rptr.3d 666 (2008).

* p. 845, end of Note 3(h): A stipulation that the court would enter summary judgment, without a proper summary judgment motion on file? See Magana Cathcart McCarthy v. CB Richard Ellis, Inc., 174 Cal.App.4th 106, 94 Cal.Rptr.3d 109 (2009).

.....(b) Interlocutory Judgments and Orders
p. 850, Note 3, following Annette F. cite: See also Morton v. Wagner, 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818 (2007) (noting split of authority and aligning with the majority of recent cases that have found orders denying motions for reconsideration to be nonappealable).

* p. 850, end of Note 3: A postjudgment order confirming an arbitration award is appealable, unless further proceedings are contemplated. See In re Marriage of Corona, 172 Cal.App.4th 1205, 92 Cal.Rptr.3d 17 (2009) (order confirming arbitration award considered preliminary to further proceedings and not appealable where special referee appointed to perform accounting pursuant to award).

.....(c) Collateral Orders
* p. 854, end of Note 2: Jumping into the fray regarding the California requirements under the collateral order doctrine, the Court of Appeal held that for certain kinds of trial court orders, the doctrine may apply even if the order being reviewed does not require the payment of money or performance of an act. The "real test is whether the order is collateral and final as to the collateral matter, not whether the order has the effect of requiring payment of money or the performance of an act." Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4th 887, 903, 91 Cal.Rptr.3d 617, 630 (2009) (distinguishing Meehan, and noting that the federal collateral order doctrine does not contain a payment or performance requirement).

p. 856, new Note 8: Similar to the plaintiff in Ponce-Bran who relied on the collateral order doctrine, a father in a paternity and child support action argued that the Court of Appeal should review a trial court order for genetic testing as a collateral order. While the order was final on the issue it determined, and it ordered the father to perform an act, the Court of Appeal dismissed the appeal because the order was not collateral to or severable from the merits of the action. Also like Ponce-Bran, the Court also declined to treat the purported appeal as a petition for an extraordinary writ. Although the order arose out of an unusual set of factual circumstances, the order did not raise questions "of general importance to the trial courts and to the profession." San Joaquin County Department of Child Support Services v. Winn, 163 Cal.App.4th 296, 77 Cal.Rptr.3d 470 (2008).

2. Nonappealable Orders
*.....(a) Extraordinary Writs
* p. 856, second paragraph, immediately following fourth sentence: A peremptory writ will be issued in the first instance only when the entitlement to relief is "so obvious" that oral argument would not be useful. However, the appellate court should issue the peremptory writ only after it has sought written opposition from the affected parties. Fontaine v. Superior Court, 175 Cal.App.4th 830, 841-42, 96 Cal.Rptr.3d 607, 615 (2009).

(a) Extraordinary Writs
* p. 862, end of Note 8: See also Lewis v. Superior Court, 169 Cal.App.4th 70, 86 Cal.Rptr.3d 565 (2008) (appeal from superior court's denial of postjudgment motion brought twenty years after conclusion of trial court action is treated as petition for writ of mandate).

.....................................................................C. Other Requirements for Appellate Review
1. Standing
p. 865, end of Note 3: As a general rule, a party who has unconditionally and voluntarily accepted the benefits of a trial court judgment waives the right to appeal from that judgment. However, if the judgment establishes the appellant's right to recovery, but the appellant benefits from only a portion of the judgment, he may appeal from the remainder of the judgment or seek on appeal a larger recovery than awarded under the judgment. Shopoff & Cavallo LLP v. Hyon, 167 Cal.App.4th 1489, 85 Cal.Rptr.3d 268 (2008). See also Satchmed Plaza Owners Ass'n v. UWMC Hospital Corp., 167 Cal.App.4th 1034, 84 Cal.Rptr.3d 585 (2008) (party may appeal adverse portions of judgment that are "severable" while accepting other benefits under judgment, but must be careful to avoid implied waiver of right to appeal).

2. Timely Notice of Appeal
* p. 872, Note 1, end of first paragraph: See also Bi-Coastal Payroll Services, Inc. v. California Insurance Guarantee Assn., * 174 Cal.App.4th 579, 94 Cal.Rptr.3d 562 (2009)(as in Sunset Millennium, minute order did not trigger time limit for filing notice of appeal because it did not comply with strict requirements of CRC 8.104(a)(1)).

p. 872, Note 1, new second through fourth paragraphs: The notice of entry of final judgment in an action is typically the starting point for calculating the time the appellant has to file a notice of appeal. However, sometimes entry of final judgment is a mere recapitulation of previous orders and does not have any bearing on the time clock for appeal. For example, if a court enters an order granting an anti-SLAPP motion and dismisses the entire action, and subsequently and separately issues an order granting the prevailing party's request for attorney's fees, each order is appealable. CCP § 904.1. If the trial court combines both orders into what it refers to as a "judgment," but the judgment serves no real purpose, waiting to appeal from the judgment may make the appeal from each of the orders untimely. Melbostad v. Fisher, 165 Cal.App.4th 987, 81 Cal.Rptr.3d 354 (2008).
.....In another example, the trial court in a LLC dissolution action issued an alternative decree, which decided the valuation of the business and ordered the plaintiff by a certain date to either buy out the defendant's share or begin the process of winding up the business. The plaintiff chose to pay the defendant for his interest, and the trial court entered judgment for the defendant. The Court of Appeal held that the plaintiff's appeal from the judgment rendered the notice of appeal untimely. He should have appealed from the previous alternative decree because the decree decided the valuation of the business (which was the focus of the appeal). The judgment merely terminated the proceedings after the court's valuation. Dickson v. Rehmke, 164 Cal.App.4th 469, 78 Cal.Rptr.3d 874 (2008).
.....What does "mail" mean for the purposes of triggering the 60-day appeal period in CRC 8.104(a)? According to one district Court of Appeal, it does not mean "e-mail." Even in a complex litigation matter in which the trial court expressly ordered electronic filing, an e-mail from the court clerk attaching a file-stamped judgment is not sufficient to initiate the 60-day period to file a notice of appeal. The appellate courts generally require strict compliance with CRC 8.104, and that translates here into mail delivery only by the United States Postal Service, not by electronic delivery. Citizens for Civic Accountability v. Town of Danville, 167 Cal.App.4th 1158, 84 Cal.Rptr.3d 684 (2008). Compare InSyst, Ltd. v. Applied Materials, Inc., 170 Cal.App.4th 1129, 88 Cal.Rptr.3d 808 (2009) (Under CCP § 1010.6 and CRC 2.260, electronic service by court clerk of notice of entry of judgment or file-stamped copy of judgment is permissible alternative to mailing and triggers 60-day appeal eriod).
* ..... In order to resolve the confusion in CRC 8.104 between a clerk's "mailing" and a party's "service," Rule 8.104 has been amended (effective 1/1/10) to provide that the time for filing a notice of appeal begins to run from the clerk's service of the judgment or notice of entry of judgment. Service by the clerk or by a party may be made in any manner permitted in the CCP, including electronically.

p. 873, Note 3, following Hollister Convalescent Hospital cite: However, the Court of Appeal has permitted an incarcerated pro per litigant seeking to appeal a civil judgment to rely on the "prison-delivery rule" ordinarily applicable only to prisoners filing criminal appeals. The prison-delivery rule deems a notice of appeal timely as long as it was delivered to prison officials within the required period for filing the notice. There is no language in the relevant California civil rules of court that would prohibit the application of the prison-delivery rule to civil appeals. Shufelt v. Hall, 163 Cal.App.4th 1020, 77 Cal.Rptr.3d 900 (2008). * The California Supreme
Court has resolved the conflict over the application of the "prison delivery" rule by finding that the rule applies to both civil and criminal cases. When a pro se prisoner delivers a properly stamped and addressed envelope to prison officials before the time for appeal has expired, the appeal is deemed timely because it has been
"constructively filed," even if the court receives the notice after the filing deadline. Silverbrand v. County of Los Angeles, 46 Cal.4th 106, 92 Cal.Rptr.3d 595, 205 P.3d 1047 (2009).

p. 873, Note 4: Appellants (and even trial courts) sometimes seek imaginative ways to mitigate the onerous effects of the appellate timing rules. In one case, a plaintiff had not learned of the entry of judgment against her until seven months later because statutorily-required notice of entry had not been provided by the defendant or the clerk of the court. The trial court vacated the judgment as void and reinstated the judgment as of the date of the order, permitting the plaintiff to file a "timely" notice of appeal. The Court of Appeal dismissed the appeal, stating that the trial court lacked jurisdiction to vacate the judgment due to the failure to provide the required notice of entry of judgment. In the absence of the notice of entry, the plaintiff should have filed her notice of appeal within 180 days of the original entry of judgment, pursuant to CRC 8.104(a)(3). Kimball Avenue v. Franco, 162 Cal.App.4th 1224, 78 Cal.Rptr.3d 352 (2008).

p. 874, Note 4, new second through fourth paragraphs: Recall the Edible Widgets Hypothetical in Chapter 1, Section E. Assume that Pam prevailed in her personal injury lawsuit against Dan, and the court entered judgment on June 19. Anna had represented Dan as his attorney of record throughout the trial court proceedings A few weeks before the trial, Dan associated additional counsel, Andy. On the same day the trial court entered its judgment for Pam, the court clerk mailed notice of entry of judgment to Anna but not to Andy. Dan then filed a motion for new trial. The trial court entered an order denying the motion on August 7. The clerk mailed notice of entry of the order on the same day to only Anna, not Andy. On September 7, Dan filed a notice of appeal from the judgment and from the order denying a new trial. Dan contends that he had 180 days after entry of judgment to file his notice of appeal because the court clerk mailed notice of entry of the judgment and order to only one of his two attorneys. However, since at least one of Dan's attorneys of record received actual notice of the entry of the judgment and order, the clerk's mailing was sufficient to require Dan to file his notice of appeal of the judgment within 30 days after entry of the order denying a new trial (CRC 8.108(b)). His September 7 notice of appeal was therefore untimely, and his appeal must be dismissed. See Adaimy v. Ruhl, 160 Cal.App.4th 583, 72 Cal.Rptr.3d 926 (2008).
.....One of the ways in which the usual 60-day deadline for filing a notice of appeal is extended is contained in CRC 8.108(f)(1) (formerly 8.108(e)(1)). If Party X files a timely notice of appeal from a judgment, the time for Party Y to file a notice of appeal from that judgment is extended until 20 days after the trial court clerk mails a notification of Party X's appeal. Although Rule 8.108(f)(1) is entitled "Cross-appeal," the statutory language itself does not require Party Y's appeal to be labeled a cross-appeal. Further, Party Y is not required to be adverse to Party X. Termo Co. v. Luther, 169 Cal.App.4th 394, 86 Cal.Rptr.3d 687 (2008).
If an unsuccessful litigant files a valid trial court motion to vacate a judgment under CCP § 663, her time to file a notice of appeal from the judgment is extended to 30 days after mailing (by the clerk) or service (by a party) of the order denying the motion to vacate. CRC 8.108(c). However, if the motion to vacate is not based on a proper ground, it is not a valid motion and the normal 60-day deadline for a notice of appeal applies. Moreover, if the appeal from the denial of the motion to vacate involves only issues that could have been raised in the appeal from the judgment itself, the order of denial is not separately appealable as a post-judgment order. Payne v. Rader, 167 Cal.App.4th 1569, 85 Cal.Rptr.3d 174 (2008).

* p. 875, new Note 8: Recall the Edible Widgets Hypothetical, Chapter 1, Section E. Pam and Paul did not prevail in their lawsuit against Dan's Deli, and they both wish to appeal. Their attorney, Lee, submits a timely notice of appeal that identifies the judgment from which the appeal is taken, but does not state the name(s) of the parties appealing. Does the Court of Appeal have jurisdiction to decide the appeal as to both Pam and Paul? See Toal v. Tardif, ___Cal.App.4th___, ___Cal.Rptr.3d___ (2009) [2009 WL 3491065].

..........................................................Note on Stay of Enforcement of Judgment on Appeal (new section)
p. 875, immediately preceding section (D): CCP § 916 broadly states that the perfecting of an appeal stays enforcement of a judgment. This automatic stay, however, is subject to numerous exceptions. For example, enforcement of a money judgment is not automatically stayed upon appeal; the appellant must provide an undertaking for double the amount of the judgment (or one and one-half times the judgment if provided by an "admitted surety insurer"). CCP § 917.1. If the judgment is for a lump sum payable over time, the amount of the judgment for purposes of calculating the undertaking is the entire lump sum itself, not merely the portion that became due during the appeal. "The purpose of the undertaking requirement is 'to protect the judgment won in the trial court from becoming uncollectible while the judgment is subjected to appellate review. A successful litigant will have an assured source of funds to meet the amount of the money judgment, costs and postjudgment interest after postponing enjoyment of a trial court victory.'" Leung v. Verdugo Hills Hospital, 168 Cal.App.4th 205, 211-12, 85 Cal.Rptr.3d 203, 207 (2008).
....The automatic stay provision of CCP § 916 applies only to "actions." It will apply to "special proceedings" only if the statute implementing the special proceeding expressly incorporates the stay provision. Moreover, there is no automatic stay for a self-executing judgment. If an automatic stay is not available, a party may seek a discretionary stay of a trial court judgment by petitioning the Court of Appeal for a writ of supersedeas. "Courts will grant supersedeas in aid of their appellate jurisdiction 'where to deny a stay would deprive the appellant of the benefit of a reversal of the judgment against him, provided, of course, that a proper showing is made.'" However, the Court of Appeal will require the appellant, whenever, possible, to first seek a stay in the superior court before petitioning for a writ of supersedeas. Veyna v. Orange County Nursery, Inc., 170 Cal.App.4th 146, 156-157, 87 Cal.Rptr.3d 658, 667 (2009).

............................................................................................D. Standard of Review
p. 883, Note 3, new second and third paragraphs: Varying standards of review may apply to the appeal of a trial court order, depending, among other things, on whether the order denies or grants a motion. For example, on review of an order denying a motion for new trial, the appellate court applies a de novo (independent) review standard. However, if the trial court denied the motion and provided a statement of its reasons, the applicable standard is abuse of discretion. In cases where the trial court has granted the motion for new trial, but it has not adequately supplied its reasons (as required by CCP § 657), the de novo standard applies. Whitlock v. Foster Wheeler, LLC, 160 Cal.App.4th 149, 72 Cal.Rptr.3d 369 (2008).
.....In the context of appellate review of an order denying a motion to set aside a default judgment, the Court of Appeal shed light on the often-confusing "abuse of discretion" standard of review. In describing the legal component of the standard, the Court noted: " 'The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.' " Fasuyi v. Permatex, Inc., 167 Cal.App.4th 681, 695-96, 84 Cal.Rptr.3d 351, 361 (2008).

p. 884, Note 4, new second paragraph: As noted in Roddenberry, contract interpretation is ordinarily subject to de novo review. If the trial court admitted conflicting extrinsic evidence to clarify ambiguous terms and ascertain the intentions of the parties, the Court of Appeal uses the substantial evidence standard. However, if the extrinsic evidence merely offered differing interpretations of contract terms, but it did not offer evidence of the parties' intent, then the court will apply the de novo standard. California National Bank v. Woodbridge Plaza, LLC, 164 Cal.App.4th 137, 78 Cal.Rptr.3d 561 (2008).

................................................................................E. Prejudicial versus Harmless Error
* p. 883, Note 3, new fourth and fifth paragraphs: One appellate court judge has applied a baseball analogy to the respective roles of the trial and appellate court in assessing the exercise of discretion: "the trial court is empowered, umpire-like, to simply call 'em like it sees 'em, without fear that an appellate court will overrule his 'call' simply because, to it, the runner looked safe." Miyamoto v. Department of Motor Vehicles, 176 Cal.App.4th 1210, 1223, 98 Cal.Rptr.3d 459, 470 (2009) (Rushing, J., concurring).
The Ninth Circuit has reformulated the abuse of discretion standard of review as "an objective two-part test. * * * [O]ur newly stated 'abuse of discretion' test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record." U.S. v. Hinkson, ___F.3d___ (9th Cir.2009) [2009 WL 3645003]. Does this restatement provide sufficiently clear guidance to the district courts?

p. 885, introductory material, new penultimate paragraph: The appellate court is not required to comb through the trial court record on its own in search of error. It is entitled to the assistance of counsel in the form of a brief containing adequate arguments and citations to authority and the record. If no such assistance is provided, the court may deem the party's positions waived or meritless. In re Red Light Photo Enforcement Cases, 163 Cal.App.4th 1314 n. 5, 78 Cal.Rptr.3d 78 n. 5, review granted and opinion superseded, 84 Cal.Rptr.3d 87, 193 P.3d 281 (2008).

p. 894, Note 2: In Ayala v. Arroyo Vista Family Health Center, 160 Cal.App.4th 1350, 73 Cal.Rptr.3d 486 (2008), the plaintiff argued that the judgment for the defendants was based on prejudicial error because the court gave an erroneous jury instruction that was not supported by the evidence. Although the Court of Appeal agreed that the instruction was erroneous, it found the error harmless under the five factors set out in Soule, focusing particularly on whether other instructions remedied the error. The court concluded that the error would not reasonably have resulted in a more favorable outcome for the plaintiff..

..............................................................................................F. Appellate Sanctions
* p. 895, first paragraph: An appeal that is frivolous (without merit) or is prosecuted solely to cause delay may be dismissed, either under the court's inherent power or pursuant to statute (CCP § 907) or rule of court (CRC 8.276(a)). The determination of a frivolous appeal is based on an objective standard, while the analysis that an appeal has been filed solely to cause delay is measured by a subjective standard. Although frivolousness or delay each provides an independent ground for sanctions, the two standards are frequently combined, such that total lack of merit serves as evidence of intent to delay. In re Marriage of Gong and Kwong, 163 Cal.App.4th 510, 77 Cal.Rptr.3d 540 (2008).

.....(a) Frivolous Appeal
* p. 896, new paragraph immediately following first full paragraph: Courts apply both an objective and subjective standard to determine whether an appeal indisputably has no merit. The objective standard examines the merits of the appeal from the perspective of a reasonable person, whereas the subjective standard focuses on the motives of the appellant and her attorney. Airlines Reporting Corp. v. Renda, 177 Cal.App.4th 14, 99 Cal.Rptr.3d 66 (2009).

* p. 895, end of first (introductory) paragraph: The Court of Appeal also may impose sanctions on a party or attorney for "[f]iling a frivolous [writ] petition or filing a petition solely to cause delay." CRC 8.492 (effective Jan. 1, 2009).

.....(b) Unreasonable Violations of Appellate Procedural Rules
p. 896, immediately following citation for CRC 8.276(a): For example, the failure of a representative of a party's insurance carrier with potential coverage to attend appellate mediation when its presence is required under local appellate rule constitutes an unreasonable violation of the rule and is a proper basis for sanctions in the form of attorney's fees. A party may advise the court about mediation conduct that might warrant appellate sanctions without running afoul of the mediation confidentiality requirements (see Chapter 5(B)(2)). Campagnone v. Enjoyable Pools & Spas Service & Repairs, Inc., 163 Cal.App.4th 566, 77 Cal.Rptr.3d 551 (2008).

p. 897, new penultimate paragraph: An unreasonable delay in notifying the Court of Appeal that a case has settled and dismissing the appeal will result in appellate monetary sanctions for "unreasonable violation" of CRC 8.244, which requires a timely notification of settlement after the notice of appeal has been filed. Huschke v. Slater, 168 Cal.App.4th 1153, 86 Cal.Rptr.3d 187 (2008).

...