Appellate Adventures, Chapter Three: “Let’s Appeal! Now What?”

MOSKOVITZ ON APPEALS

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") had just granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test.

With the guiding hand of his former law school professor, Patty Plato, Flash had weighed the likely costs and benefits of appealing the Bull's ruling, and decided to go ahead.

"So what do I do now, professor? How do I appeal?"

"Look it up, Flash. I'm your guide, not your flunky."

Flash nosed around some of the standard research tools on California appeals: CEB, Rutter Group and Witkin. He saw that the basic rules are grouped together in Chapter 8 of the California Rules of Court. After reviewing them, he returned to Prof Plato.

Flash said, "I have 60 days from the date of notice of entry of judgment to file a notice of appeal. The trial court's notice of entry of judgment is dated September 1, so 60 days after that is October 31. I'll mark my calendar to file the notice on October 31. OK?"

Plato tried not to sound condescending, but it wasn't easy. "Think ahead, Flash. What happens if you get sick on October 31st and can't file then?"

Flash had come across problems like this in the trial court. "No problem. I'll just ask for an extension. And if I miss the date, I'll request some sort of relief from default."

Plato lowered the boom. "Flash, the most important thing to know about the notice of appeal is that the 60-day limit is jurisdictional. Extensions and relief from default are not allowed. If you don't file by then, your appeal is dead -- D-E-A-D! So don't take any chances. Start with the date of the ruling, not the date of the notice -- even though the rules say you may start with the date of the notice. Why get into a fight about when the notice was sent? Play it safe. And calendar your filing at least a couple of weeks before the 60 days runs out, in case you run into unexpected problems. In fact, it's usually safest to file the notice right after you get the appealable ruling."

Flash was puzzled. "What do you mean by 'appealable ruling'? Aren't all rulings appealable?"

"No," said Plato. "In general, only final judgments and post-judgment orders are appealable. So you can't appeal from orders sustaining demurrers, orders granting summary judgment, or from jury verdicts -- all of which occur before judgment. You need to wait till judgment is entered."

"So I can appeal from the summary judgment, right?"

"Be very careful, Flash. You are about to make a very common mistake. You may not appeal from an order granting summary judgment. That is simply a pre-judgment order. It is not a judgment. You must wait until judgment on that order is entered, and then appeal from that judgment. A very technical difference, I know, but that's the rule."

"But if I can't appeal from the order granting summary judgment, how can I argue to the appellate court that it was wrong?"

Plato explained, "An appeal from a judgment allows the appellant to challenge every ruling that led to that judgment."

Flash said, "Well, a judgment was entered against Debbie, so we're OK on that score. But Topspin has also moved for their attorney fees. My appeal will let me challenge that award too, right?"

"Probably not," Plato said. "You're filing a notice of appeal from the judgment, which does not include the attorney fee award, which will come later. When that happens, you'll need to file a separate notice of appeal from that order. And don't forget to do this -- or you'll be stuck with having to pay the other side's attorney fees even if you get the underlying judgment reversed!"

"OK," said Flash. "I'd better file this notice of appeal right away. But I haven't written out my arguments yet."

Plato replied, "That comes later, when you file your opening brief. The notice of appeal is not a brief. It's a very simple notice that says what you are appealing from. It's so simple, you can use Judicial Council Form APP-002. Just check the right box. You don't need to specify what part of the judgment or order you plan to challenge. If there was more than one judgment or order, specify the ones you are appealing from. Include the date of the judgment or order, just to make sure it doesn't get mixed up with another one. If there were amended judgments or orders and you're not sure which one is the operative one, appeal from all of them. If you leave one out and the 60 days runs, you'll be dead on that one, so don't take any chances."

"And I file this with the appellate court?"

"No," said Plato. "You file it with the trial court clerk, with a rather hefty filing fee."

"What's next?"

Plato explained, "Within 10 days after you file the notice of appeal, you need to file with the trial court clerk a 'designation of record.' This is the vehicle for getting to the appellate court the parts of the trial court record you want them to see in order to decide the appeal."

"How do I do that?" asked Flash.

"There are two parts to this," Plato replied. "First, the papers -- the motions, briefs, and orders. You can ask the trial court clerk to prepare a 'clerk's transcript' that includes those documents -- or you can check the box that says you will prepare an 'appellant's appendix' that contains the docs. The clerk's transcript costs money and often takes longer to prepare. The appellant's appendix is cheaper and you submit it along with your opening brief. Second, the transcripts of the trial or hearings. You need to arrange this with the court reporter, who will probably require payment up front."

"So now I'm done?" asked Flash.

"Done?" replied Plato. "You've barely even started. What you've done so far requires care, but no particular talent. Now comes the hard part: writing a winning opening brief."

For that, tune in next column.