The basics of California Appeals — two not-
so-simple rules:
Filing a timely notice of appeal and
designating a proper record - page 2
By Jeffrey Isaac Ehrlich | Phone: (818) 905-3970 | Email: The Ehrlich
Firm | Download .doc
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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.
Note from another site:
In the past two months the California Court of Appeal and Ninth Circuit Court
of Appeals have issued several opinions touching on important aspects of
appellate procedure. Two broad themes emerge from these cases.
Effect of Motion for Reconsideration; Tardy Appeal Not Deemed a Writ
Petition
Absent notice of entry of an appealable order or judgment, the
outside limit for filing a notice of appeal is 180 days after entry. In
Annette F. v. Sharon S. (4th Dist. Div. 1, 7/12/05), after the trial court had
issued an appealable order, the losing party filed a motion for
reconsideration. That reconsideration motion, however, was not resolved
until more than 180 days after entry of the order, at which point the losing
party filed a notice of appeal from the original order and the order denying
reconsideration. The court of appeal dismissed the purported appeals.
Although a motion for reconsideration can extend the
time to appeal, that extension is limited by the outside
180-day limit. Further, the court ruled that orders denying
reconsideration are not appealable. Moreover, the court declined to treat the
late appeal as a writ petition.
Lesson: Always file a notice of appeal within the180-day outside limit, even
if a reconsideration motion is pending...
Premature Motion for Reconsideration Did Not Shorten
Time to Appeal
In ABF Capital Corp. v. Osley (9th Cir. July 12, 2005), the defendants
successfully obtained dismissal orders, but before any judgment was
entered, the plaintiff filed a motion for reconsideration. Ordinarily, a party has
30 days from entry of judgment to appeal, but a new trial motion, a JNOV
motion, or a reconsideration motion extends the time to appeal to 30 days
after denial of the motion. Here, however, because no judgment had been
entered, the reconsideration motion was premature. After the motion was
denied and the plaintiff appealed more than 30 days after that denial, the
defendants moved to dismiss the appeal. The court of appeals refused to
dismiss the appeal, however, reasoning that rules on post-trial motions
were designed to extend the time to appeal, not shorten it.
Denial of Tolling Motions Would Not Shorten Time to Appeal
In a somewhat similar scenario, in Southern Union Co. v. Irvin, (9th Cir. July
13, 2005), a jury returned a verdict and the losing party filed post-trial motions
for new trial and JNOV before any entry of judgment. After denial of the
post-trial motions, the court entered final judgment and the losing party filed
a notice of appeal within 30 days of that entry, but more than 30 days after
denial of the post-trial motions. Again, the court of appeals declined to
dismiss the appeal, finding that the denial of the post-trial motions could not
act to shorten the time to appeal.
Lesson: Tolling motions (e.g., motions for reconsideration, new trial,
and JNOV) complicate the appellate process. Although the
deadlines to appeal are strictly construed, the
Ninth Circuit does not appear willing to use
the tolling motion rules to shorten the time to
appeal. To the extent possible, prevailing parties should quickly obtain
final appealable judgments.
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.
so-simple rules:
Filing a timely notice of appeal and
designating a proper record - page 2
By Jeffrey Isaac Ehrlich | Phone: (818) 905-3970 | Email: The Ehrlich
Firm | Download .doc
Next Page | 1 | 2 | 3 | 4 | 5 | Previous Page
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.
Note from another site:
In the past two months the California Court of Appeal and Ninth Circuit Court
of Appeals have issued several opinions touching on important aspects of
appellate procedure. Two broad themes emerge from these cases.
Effect of Motion for Reconsideration; Tardy Appeal Not Deemed a Writ
Petition
Absent notice of entry of an appealable order or judgment, the
outside limit for filing a notice of appeal is 180 days after entry. In
Annette F. v. Sharon S. (4th Dist. Div. 1, 7/12/05), after the trial court had
issued an appealable order, the losing party filed a motion for
reconsideration. That reconsideration motion, however, was not resolved
until more than 180 days after entry of the order, at which point the losing
party filed a notice of appeal from the original order and the order denying
reconsideration. The court of appeal dismissed the purported appeals.
Although a motion for reconsideration can extend the
time to appeal, that extension is limited by the outside
180-day limit. Further, the court ruled that orders denying
reconsideration are not appealable. Moreover, the court declined to treat the
late appeal as a writ petition.
Lesson: Always file a notice of appeal within the180-day outside limit, even
if a reconsideration motion is pending...
Premature Motion for Reconsideration Did Not Shorten
Time to Appeal
In ABF Capital Corp. v. Osley (9th Cir. July 12, 2005), the defendants
successfully obtained dismissal orders, but before any judgment was
entered, the plaintiff filed a motion for reconsideration. Ordinarily, a party has
30 days from entry of judgment to appeal, but a new trial motion, a JNOV
motion, or a reconsideration motion extends the time to appeal to 30 days
after denial of the motion. Here, however, because no judgment had been
entered, the reconsideration motion was premature. After the motion was
denied and the plaintiff appealed more than 30 days after that denial, the
defendants moved to dismiss the appeal. The court of appeals refused to
dismiss the appeal, however, reasoning that rules on post-trial motions
were designed to extend the time to appeal, not shorten it.
Denial of Tolling Motions Would Not Shorten Time to Appeal
In a somewhat similar scenario, in Southern Union Co. v. Irvin, (9th Cir. July
13, 2005), a jury returned a verdict and the losing party filed post-trial motions
for new trial and JNOV before any entry of judgment. After denial of the
post-trial motions, the court entered final judgment and the losing party filed
a notice of appeal within 30 days of that entry, but more than 30 days after
denial of the post-trial motions. Again, the court of appeals declined to
dismiss the appeal, finding that the denial of the post-trial motions could not
act to shorten the time to appeal.
Lesson: Tolling motions (e.g., motions for reconsideration, new trial,
and JNOV) complicate the appellate process. Although the
deadlines to appeal are strictly construed, the
Ninth Circuit does not appear willing to use
the tolling motion rules to shorten the time to
appeal. To the extent possible, prevailing parties should quickly obtain
final appealable judgments.
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.
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Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation
SDCOE
CVESD
Castle Park
Elementary School
Law Enforcement
CTA
CVE
Stutz Artiano Shinoff
& Holtz
Silence is Golden
Schools and Violence
Office Admin Hearings
Larkins OAH Hearing
Sanctions Caselaw
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Sanctions court of appeal: codes
and judge's benchbook (Findlaw link)
Contempt and sanctions
Article on the Consevatorship of
Becca
Conservatorship of Becca Appellate
opinion
Sanctions court of appeal: codes
and judge's benchbook (Findlaw link)
Effective January 1, 2002, California Rules
of Ct., Rule 3[Deering's] provides for an
extension of time when a motion for
reconsideration of an appealable order
is made. Specifically, Rule 3 provides that
if a ``valid'' motion to reconsider an
appealable order is made, the time to
appeal that order is the earliest of:
(1) 30 days after the clerk or a party served
an order denying the motion or a 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 [ California Rules of Ct., Rule
3(d)[Deering's] ]
of Ct., Rule 3[Deering's] provides for an
extension of time when a motion for
reconsideration of an appealable order
is made. Specifically, Rule 3 provides that
if a ``valid'' motion to reconsider an
appealable order is made, the time to
appeal that order is the earliest of:
(1) 30 days after the clerk or a party served
an order denying the motion or a 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 [ California Rules of Ct., Rule
3(d)[Deering's] ]
Appeal timeliness
Safeco case: SJ and motion for reconsideration
Safeco case: SJ and motion for reconsideration
Briefing Deadlines
and Extensions in
the Court of Appeal
Horvitz & Levy
www.horvitzlevy.
com/images/ps_attachment/attachment5
23.pdf
Nov 18, 2010 –
California Courts of
Appeal, compliance
with which is crucial
for success ... due
40 days after these
transcripts are filed
in the court of
appeal. ... If a
deadline falls on
a weekend or
holiday, it is
extended to the
next business day
...
and Extensions in
the Court of Appeal
Horvitz & Levy
www.horvitzlevy.
com/images/ps_attachment/attachment5
23.pdf
Nov 18, 2010 –
California Courts of
Appeal, compliance
with which is crucial
for success ... due
40 days after these
transcripts are filed
in the court of
appeal. ... If a
deadline falls on
a weekend or
holiday, it is
extended to the
next business day
...