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Navigating Appeals

By Gary A. Watt Ben Armistead | Apr. 16, 2018

general / Appellate Practice

Navigating Appeals

Appeals can involve unfamiliar terrain for trial lawyers, and when everything is new, it is easier to miss critical landmarks. For those embarking into uncharted water or just nurturing an appeal through initial filing, take along a map and compass: the California Rules of Court for civil appeals. The rules provide the answer to virtually every navigational question that can arise during an appeal. In this article, a few of the general landmarks contained in Title 8, Division 1, Chapters 1 and 2 are visited in the hope that uninitiated appellate voyageurs can avoid a shipwreck early in the journey.

Filing the Notice of Appeal

Failure to file a notice of appeal on time is fatal. Reread the prior sentence because lawyers thrive on exceptions to rules, but there are no exceptions to this rule. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal. 4th 51, 56 (1997) (timely filing is an absolute prerequisite to the appellate court power to take up the appeal). Rule 8.104(a)(1)(A)-(B) provides that "a notice of appeal must be filed on or before the earliest of" 60 days after the superior court clerk or any party serves the appealing party with "a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment." Certain enumerated motions can extend the time to file the notice of appeal. Rule 8.108. A notice of appeal is filed in the superior court. Rule 8.100(a)(1).

Compass Points: Note "the earliest of" language in Rule 8.104 which anticipates that one may receive notice from the clerk and from one or more parties -- so don't go by the later arrival. Note that a party can trigger notice against itself by serving notice on others. Rule 8.104(a)(1)(B). Be aware that something labeled "notice" is not even required, a file-endorsed copy of the judgment is sufficient. And, these time limits also apply to appealable orders "if the appeal is from an appealable order." Rule 8.104(e). Finally, note for those relying on "extended time" under Rule 8.108 -- it is a veritable maze of untimely appeals and tenders to malpractice insurers.

Designating the Record

The appellant must designate the record within 10 days after filing the notice of appeal. Rule 8.121(a). The "record" consists of pertinent written documents and any reporter's transcripts of oral proceedings (trial, hearings). Rule 8.120(a)-(b). The record designation is filed in the superior court, and a Judicial Council form is fairly easy to use. A clerk's transcript (of the written documents) can be designated (Rule 8.122), but the required and requested documents must be itemized on the designation form. Alternatively, one may elect to file an appellant's appendix (Rule 8.124), a do-it-yourself clerk's transcript, which can be filed when the opening brief is filed. Whatever route taken, the record must include certain enumerated documents. Rule 8.122(b)(1)(A)-(F); 8.124(b)(1)(A). As for reporter's transcripts, the designation "must specify the date of each proceeding to be included in the transcript." Rule 8.130(a)(1). A statutory deposit for preparation of the reporter's transcript is required when designating the record. Rule 8.130(b).

Compass Points: Be wary of choosing an appendix over a clerk's transcript in cases involving large records. A lot of time is required to obtain/organize file-endorsed documents in chronological order, create the proper tables of contents (see Rule 8.124(d)(1); 8.144(b)(5)(a)), make sure the volumes are e-filing compliant, etc. For lawyers lacking access to support, the initial allure of avoiding the fixed cost of a clerk's transcript may quickly dissipate when the time and care necessary to prepare an appendix hits home. Note that no deposit is immediately required when designating a clerk's transcript; the superior court will send notice of the estimated cost after it receives the designation. Rule 8.122(c). When designating the reporter's transcripts, minimize the statutory deposit by touching base with the court reporter(s) first. Sometimes a much lower deposit amount results. Parties can actually borrow a copy of the record instead of purchasing one, but be wary of the short time period for making such requests ("within 20 days after the record is filed in the reviewing court"). Rule 8.153(a).

Appellate Briefing Deadlines

Rule 8.212 provides the standard briefing deadlines on appeals, and Rule 8.216 provides a process for briefing schedules in cross-appeals. Under Rule 8.212: The opening brief is due 40 days from the date the clerk's transcript, or reporter's transcript in cases designating an appendix, is filed (70 days if an appendix has been designated and no reporter's transcript is designated); the responding brief is due 30 days after the opening brief if filed; and the reply brief is due 20 days after the responsive brief is filed. Rule 8.212(a)(1)-(3). Perhaps the greatest luxury appellate lawyers enjoy is ample time to file the briefs. The parties can stipulate to a maximum of 60 days of extensions per brief (in one or more such stipulations), and if in correct form, such stipulations are good on filing. In addition, whether stipulations are obtained or not, parties can seek extensions by application to the Court of Appeal. Rule 8.212(b)(1)-(3).

Compass Points: When applying to the appellate court for extensions of time, take a look at Rule 8.63's factors establishing good cause. When expressing good cause for an extension, pay attention to the factors and cite to them. There is a Judicial Council form for extension of time applications. As to briefing deadlines, under Rule 8.220, "if an appellant's opening brief or respondent's brief" is not filed on the calendared due date, then the clerk "must promptly notify the party in writing" that the brief must be filed "within 15 days after the notice is sent." So under Rule 8.220, "there is a 15-day grace period; a party need not file for an extension or relief from default if the brief can be filed within the time prescribed." Black Historical Society v. City of San Diego, 134 Cal. App. 4th 670, 675 (2005). However, note the absence of any reference to a reply brief in Rule 8.220 -- there is no grace period for such briefs.

Appellate procedure is far from simple. The handful of rules discussed here are only the starting point. And the State Bar has made appellate specialization part of its certification programs -- a red flag for the inexperienced. But for those contemplating setting sail without seasoned appellate counsel, the Rules of Court can provide for smoother seas or at least, calmer nerves. Of course, navigation should be left to the experts: the certified appellate specialists. But for those who must set sail alone, consult the rules early and often. That way, the first appellate voyage may not be the last.

#210

Ben Armistead


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