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..................................................................................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).
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