civil appellate practice · 1. under code of civil procedure section 657, the appellate court...

CIVIL APPELLATE PRACTICE

With emphasis on practice before the Court of Appeal, Third Appellate

District

George E. Murphy

8801 Folsom Boulevard, Suite 230 Sacramento, CA 95828

(916) 400-2300

www.CivilAppealsAndWrits.com

Judy_2

mcga2

www.civilappealsandwrits.com ©Murphy, Campbell, rev. 2008

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I. MAKE THE RECORD

A. The appellate court considers only what is included in the formal

record sent to it by the county clerk, with the exception of matters

which can be judicially noticed.

1. The record generally includes:

a. pleadings;

b. papers filed during litigation (e.g., motions, exhibits

attached thereto, orders, etc.);

c. reporter’s transcripts of proceedings;

d. trial exhibits.

2. Appellant must affirmatively show error upon an adequate

record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)

3. The record must be adequate to permit the appellate court to

determine:

a. the issue;

b. that the issue was presented to the trial court (Doers

v. Golden Gate (1979) 23 Cal.3d 180);

c. how the trial court ruled;

d. the significance of the issue.

4. Judicial notice sometimes saves an insufficient record.

(Evid. Code § 459.)

B. Wherever possible, make a record of the proceeding to preserve

the issues.


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1. It is the attorney’s responsibility to clarify a witness’ non-

verbal responses. Demand specificity as to the significance

of testimony regarding numbers.

2. Refer to exhibits by number for purposes of clarity.

3. Avoid side bench conferences and conferences in chambers

unless a reporter is present. The court’s formal ruling on the

record is not always sufficient background for the appellate

court.

II. APPEALABILTY

A. The one final judgment rule.

1. Generally, an appeal lies only from a final judgment that

terminates the trial court proceedings by completely

disposing of the matter in controversy. (Kinoshita v. Horio

(1986) 186 Cal.App.3d 949, 962-963.)

2. Finality is determined from the standpoint of the particular

appellant, not the entire litigation.

a. An order disposing of all claims or defenses of one

party is appealable. (Johnson v. Threats (1983) 140

Cal.App.3d 287, 289.)

b. An order denying plaintiff leave to amend to add a

defendant is appealable.


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B. Appealable orders.

1. Code of Civil Procedure section 904.1 makes certain orders

specifically appealable:

a. An order made after an appealable judgment. (Code

Civ. Proc. § 904.1, subd. (b).)

b. Order granting motion to quash service of summons

or granting a motion to stay or dismiss the action on

the ground of inconvenient forum. (Code Civ. Proc. §

904.1, subd. (c).)

c. Order granting new trial or denying motion for

judgment notwithstanding the verdict. (Code Civ.

Proc. § 904.1, subd. (d).)

d. Order discharging or refusing to discharge an

attachment or granting right to attach order. (Code

Civ. Proc. § 904.1, subd. (e).)

e. Order granting or dissolving an injunction, or refusing

to grant or dissolve an injunction. (Code Civ. Proc. §

904.1, subd. (f).)

f. Order appointing receiver. (Code Civ. Proc. § 904.1,

subd. (g).)

g. Interlocutory judgments entered in action to redeem

property from a mortgage or action for partition.

(Code Civ. Proc. § 904.1, subd. (j).)


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2. Order finally disposing of severed cause of action may be

independently appealable. (Schonfeld v. City of Vallejo

(1975) 50 Cal.App.3d 401, 418.)

3. Orders requiring the immediate payment of money or

performance of some other act. (Baugess v. Paine (1978)

22 Cal.3d 262.)

a. Orders imposing monetary sanction (e.g., under Code

of Civil Procedure section 128.5). (O’Brien v. Cseh

(1983) 148 Cal.App.3d 957, 960.)

b. Temporary support orders. (In re Marriage of Skelly

(1976) 18 Cal.3d 365.)

C. Nonappealable Orders.

1. Order sustaining demurrer (Weiss v. Marcus (1975) 51

Cal.App.3d 590, 594, fn.1), but court may treat as appeal

from judgment. (Molien v. Kaiser Foundation Hospitals

(1980) 27 Cal.3d 916, 920-921.)

2. Orders granting or denying summary judgment.

3. Orders granting or denying summary adjudication of issues.

4. Court may determine the merits of an attempted appeal from

a nonappealable judgment or order by treating the matter as

a writ proceeding. (Olson v. Cory (1983) 35 Cal.3d 390,

400-401.)


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5. Ruling on venue. Appealable from municipal court (Code

Civ. Proc. § 904.2, subd. (c).), but only by writ from superior

court (Code Civ. Proc. § 400.)

D. Motions for New Trial – CCP 657. 1. Under Code of Civil Procedure section 657, the appellate

court cannot affirm a trial court’s order granting a new trial on

the grounds of (a) insufficiency of the evidence or (b)

excessive or inadequate damages unless the trial court has

specified these grounds in its order.

2. Code of Civil Procedure section 657 mandates that the trial

court not only specify the grounds for granting a motion for

new trial in its order, but it must also specify in writing its

reasons for granting the motion on each ground stated.

Reasons given orally on the record are insufficient. (Stevens

v. Parke Davis & Co. (1973) 9 Cal.3d 51, 62.) If the reasons

are not specified in the order itself, the court has only 10

days from the filing of the order to prepare, sign and file a

written specification of reasons with the clerk. If the court

fails to specify reasons, on appeal the new trial order will be

held to be defective and unsupported by the record.

(Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892,

901.) Trial counsel should be vigilant about making sure the


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court fulfills its obligations in this regard, and keep in mind

that it is the court who must prepare the written specification

of reasons (counsel may not prepare it for the court’s

signature).

E. Separate Statement.

Appellant’s opening brief must contain a separate statement of

appealabilty. (CRC, Rule 8.200.) Briefs not containing such

statement will be returned to appellant’s counsel for revision and

refilling.

III. PRESERVE ISSUES

A. No reversal if error invited, consented to, or waived.

1. There must be a timely objection. (Bardessono v. Michels

(1970) 3 Cal.3d 780.)

2. Evidence submitted in support of a motion for summary

judgment – make or waive objections. (Code Civ. Proc. §

437c, subd. (b).)

3. Jury instructions may be deemed excepted to. (Code Civ.

Proc. § 647; Enis v. Specialty Auto Sales (1978) 83

Cal.App.3d 928, 940.)

a. However, not if appellant requested a similar

instruction. (Smith v. American Motor Lodge (1974)

39 Cal.App.3d 1.)


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b. Appellant cannot claim error in failure to give a

particular instruction where the instruction was not

requested. (Spahn v. Guild Indus. Corp. (1979) 94

Cal.App.3d 143, 160.)

c. Not ground for reversal if rights of appellant clearly

stated in other instructions. (Spahn v. Guild Indus.

Corp. (1979) 94 Cal.App.3d 143, 159.)

d. Instructional error may be moot if special verdict form

shows jury did not reach issue. (Bossi v. State of

California (1981) 119 Cal.App.3d 313, 320-321;

Murrell v. State of California ex. Rel. Dept. Pub. Wks.

(1975) 47 Cal.App.3d 264-271.)

4. De novo or independent review is available on pure

questions of law. (Stratton v. First National Life Ins. Co.

(1989) 210 Cal.App.3d 1071.)

B. Waiver may be implied by payment of judgment (Al J. Vela &

Associates v. Glendora Unified School Dist. (1982) 129 Cal.App.3d

766, 769) or by acceptance of benefits of judgment. (Lee v. Brown

(1976) 18 Cal.3d 110, 114.)

1. However, financial exigencies may preclude waiver (Lee v.

Brown (1976) 18 Cal.3d 110) and severable portion of

judgment not stipulated to is reviewable. (Templeton v.

Ralston (1968) 69 Cal.2d 461.)


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IV. SHOULD YOU APPEAL?

A. The chances for success.

1. Most appeals do not succeed. Appellate courts uphold

about 80 to 90 percent of rulings that are appealed.

2. In most cases, the presumptions are against appellant. The

Court of Appeal presumes:

a. The trial court followed proper procedures;

b. That evidence to support any necessary finding is in

the record;

c. That the judge made findings necessary that could be

inferred from the evidence;

d. That the judge correctly applied the law to the

findings;

e. That even if the judge did commit error, it was not

prejudicial.

3. The appellate court does not substitute its judgment for that

of the trial judge. (Brown v. Newby (1940) 39 Cal.App.2d

615, 618.)

B. What does it mean to win?

1. Most of the time a reversal results in a new trial. Success on

appeal usually means further expense at the trial court level,

and possibly another appeal.


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2. However, in some cases a reversal results in a remand to

the trial court with instructions to enter a judgment in favor of

the appellant. Whether or not a new trial will be required

depends on why the judgment was reversed.

C. The cost benefit analysis.

1. The appeal process moves slowly.

2. Attorneys fees are significant.

a. A winning brief takes longer to prepare than most

people realize. It is written and rewritten many times,

honed and crafted to a much greater degree than

briefs filed in the trial court. Even the process of

deciding which issues to appeal involves a substantial

amount of time in research, record review,

deliberation and analysis before the writing process

even begins. Appellate judges frequently complain

that attorneys do not spend enough time preparing

briefs.

D. If the appeal involves a money judgment, interest accrues at the

rate of 10 percent simple interest, per annum, or 7 percent in the

case of public entities. Also, it may be necessary to obtain a bond

to stay the effect of a money judgment, although public entities are

exempt.

E. Is an appeal ever worth it?


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1. The answer is, of course, yes. Where the stakes are

sufficiently high and there is a reasonable opportunity to

argue the existence of “legal error”, an appeal is warranted.

2. Although raw statistics indicate a low chance for success,

that is partially because appeals are filed in many cases

where there is virtually no appealable issue or the issues

have not been effectively presented and persuasively argued

by counsel.

V. NOTICE OF APPEAL

A. Notice must be in writing, signed by appellant or an authorized

attorney, and filed with the superior court. An attorney newly

retained to handle the appeal after trial may sign even before an

association of counsel is filed if so authorized by the appellant.

(Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.)

B. Notice of appeal must be timely. Untimeliness is a jurisdictional

defect for which no relief can be granted. (CRC, Rule 8.60.)

1. DEADLINES (CRC, Rules 8.104 and 8.108):

a. Within 60 days of mailing notice of entry of judgment

or 60 days after entry, whichever comes first.

Appealable order is deemed entered on entry in

permanent minutes or, if not in minutes, when signed

by court. (CRC, Rule 8.104; Pacific City Bank v. Los


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Caballeros Racquet & Sports Club, Ltd. (1983) 148

Cal.app.3d 223.)

b. Denial of motion for new trial extends the time to file

for 30 days after entry of such order, but in no event

later than 180 days after entry of judgment. (CRC,

Rule 8.108.)

c. Notice of motion to vacate judgment extends time for

30 days after entry of order, or 90 days after filing

such notice, or 180 days after entry of judgment –

whichever is less. (CRC, Rule 8.108.)

d. Premature notice is deemed valid. (CRC, Rule

8.104.)

e. If proper notice of entry of judgment is not given, for

whatever reason, the outside limit for filing a notice of

appeal is 180 days after entry of judgment. (CRC,

Rules 8.104, 8.108.)

f. The cross-appellant must file his notice within 20 days

after superior court clerk mails notification of appeal.

(CRC, Rule 8.108.)

g. If one party has filed a timely notice of appeal, the

deadline for all other parties to file a subsequent

notice of appeal from the same judgment or

appealable order is extended 20 days.


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C. The Notice of Appeal must identify the order or judgment being

appealed and be signed by appellant or appellant’s counsel. (CRC,

Rule 8.100.)

D. A separate notice of appeal is required for appealable post-

judgment orders rendered after appellant file a notice of appeal

from the judgment. Exception = where judgment awards routine

(not discretionary) costs/attorney’s fees but determination of the

amount of such costs/fees is made in a subsequent order, the

notice of appeal from the original judgment subsumes said

subsequent determinations of the amount and a separate notice of

appeal is not required. (Grant v. List & Lathrop (1992) 2

Cal.App.4th 993, 998.)

E. The notice of appeal is filed with the clerk of the superior court, and

is deemed filed on the date received (mailbox rule does not apply).

Normally, the notice must be accompanied by a $265 filing fee

(Gov. Code § 68926; CRC, Rule 8.100) and a $100 deposit for

preparation of the clerk’s transcript.

1. NOTE: Government entities and government employees

acting in their official capacities are exempt from the filing

fee and transcript deposit requirements. (Gov. Code §

6103.)


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VI. DESIGNATION OF THE RECORD

A. Not later than 10 days after filing notice of appeal. (Best practice:

file with notice of appeal.)

1. Appellant’s duty to designate record.

B. Reporter’s transcript: Appellant has burden of making adequate

record.

1. Within 10 days of designating record, reporter furnishes

estimated cost. (CRC, Rule 8.130.) Within 10 days

thereafter, the appellant must deposit the estimated cost.

2. Within 30 days thereafter, the reporter prepares and files

with the superior court clerk. (Usually gets extension.)

3. If appellant fails to timely pay, the clerk of the superior court

notifies appellant that appeal will be dismissed unless he

shows good cause for relief in the reviewing court. (CRC,

Rule 8.147.)

C. Clerk’s transcript.

1. Designate within 10 days of notice of appeal; respondent

must designate any additional papers or records within 10

days of service of appellant’s designation. (CRC, Rule

8.120.)

D. Appendixes or Superior Court File.

1. CRC, Rule 8.124 as alternative to Clerk’s Transcript.


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a. Within 10 days after notice of appeal, either party may

serve and file election.

b. Essentially creates party’s own “clerk’s transcript.”

c. Can be separate or joint.

d. Required contents are set forth in CRC, Rule 8.124.

e. Each party pays for its own appendix, but joint is paid

by appellant or pursuant to agreement.

2. CRC, Rule 8.128 where permitted by local rule.

a. Parties may stipulate to use original court file.

b. File within 10 days after notice of appeal.

3. Agreed statement or settled statement.

E. Use of Original Superior Court File.

1. CRC, Rule 8.128 and Local Rule 2 permit stipulation to use

original court file instead of clerk’s transcript.

a. Stipulation must be filed with appellant’s designation

of record.

b. Superior Court estimates cost and appellant pays

within 10 days of notice.

c. 10 days later Superior Court puts court file in

chronological order, numbers pages and provides

index.

d. Index is then sent to parties, and original file and

index to appellate court with Reporter’s Transcript.


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F. Exhibits.

1. Trial exhibits are copied into the clerk’s transcript upon

proper request. (CRC, Rule 8.120.) To get original exhibit,

notify the superior court clerk upon notice of oral argument.

G. Augmentation available on request of a party or appellate court’s

own motion.

H. Appellate court may take evidence (Code Civ. Proc. § 909), but that

power is limited to questions of law and is exercised rarely.

(Gurewitz v. Kinder (1979) 96 Cal.App.3d 69, 74.)

VII. MOTIONS

A. Routine (e.g., extensions) (CRC, Rule 8.50).

1. Notice not required.

2. Provide clerk with stamped, addressed envelopes (CRC,

Rule 8.50).

3. Show good cause.

B. Noticed motions. (CRC, Rule 8.54.)

1. Served and filed.

2. Opposition filed within 10 days of service.

3. No hearing required usually (exception – motion for

attorney’s fees for frivolous appeal).

4. Form – CRC, Rule 8.40.

5. State grounds and declaration.


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6. Dismissal (e.g., failure to pay costs, mootness, failure to file

opening brief, nonappealable order).

VIII. CROSS-APPEALS

A. Notice of Cross-Appeal due 20 days after mailing of notification by

Superior Court Clerk of appeal. (CRC, Rule 8.108.)

B. Pay filing fee.

C. Protective cross-appeal necessary when superior court grants new

trial or vacates judgment. (Sanchez-Corea v. Bank of America

(1985) 38 Cal.3d 892, 910.)

D. Briefs.

1. Respondent and cross-appellant may combine brief on

cross-appeal. (CRC, Rule 8.204.)

2. The appellant as cross-respondent may respond to the

cross-appeal in a section of the appellant’s reply brief.

(CRC, Rule 8.204.) Appellant’s reply brief, which contains

cross-respondent’s response, may be served 30 days after

filing of respondent’s brief containing a brief as cross-

appellant. (CRC, Rule 8.216.)

3. Respondent’s reply brief as cross-appellant shall be served

20 days after filing of appellant’s reply brief containing a brief

as cross-respondent. (CRC, Rule 8.216.)

E. Cross-appellant may file a reply brief confined to the points on

cross-appeal.


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IX. STANDARD OF REVIEW

Standard of review refers to the degree of deference appellate courts

grant a particular type of trial court ruling. There are three general

grounds upon which to seek reversal:

1. Legal error;

2. Abuse of discretion; and

3. Lack of substantial evidence.

A. The Substantial Evidence Rule – how appellate court resolves

instances of conflicting evidence

1. “Substantial” evidence refers to quality, not quantity.

2. The appellate court will not reweigh evidence; but does

weigh evidence to determine if legal error is prejudicial.

3. If there is evidence to support the judgment, the court will

affirm (unless other error).

4. Evidence is viewed most favorable to respondent.

5. Testimony of a single credible witness may be sufficient.

6. “Substantial” does not equal “any;” it must be reasonable,

credible, and of solid value. Evidence which is inherently

improbable may be disregarded – e.g., if defies scientific

knowledge.

7. The rule is not invoked if the trial court has not properly

performed its weighing function.


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8. Burden of proof is irrelevant to appellate court’s review of

evidence.

9. Sometimes appellate court will reject expert witness

testimony if it is not based on facts otherwise proved or if it is

based on assumed facts contrary to the only proof.

10. Be careful to determine if evidence is really conflicting on

pivotal issue. There may be a key evidentiary gap to exploit.

B. Abuse of Discretion

1. A “clear abuse” is required.

2. The trial court gets wide latitude.

3. It is difficult to show abuse.

4. Consider arguing that the trial court used the wrong legal

standard in exercising its discretion, which would constitute

legal error.

5. Consider making argument based on countervailing policy

considerations.

C. Legal Error

1. It is the appellate court’s function to review questions of law.

2. Questions of law are given independent (i.e., de novo)

review. Thus, the trial court’s decision is irrelevant.

3. Most reversed judgments are because of legal error.

4. Not every legal error will require reversal. The error must be

“prejudicial.”


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a. See § 475 of Code of Civil Procedure and Calif.

Const. VI, § 13: “a miscarriage of justice” is required

based on an examination of the entire record.

b. “Prejudicial” error is another way of asking whether

the error was “harmless”.

c. “Prejudicial” error is not presumed.

d. The Watson rule (People v. Watson (1956) 46 Cal.2d

818, 836.) A miscarriage occurs when the appellate

court determines it “reasonably probable that a result

more favorable to the appealing party would have

been reached in absence of the error.”

e. Some legal errors are regarded as “prejudicial per

se.”

D. In some instances, the standard of review favors the losing party.

1. Demurrer sustained.

a. Facts alleged are deemed as “true.”

b. The ruling is erroneous if plaintiff has stated a cause

of action under any possible legal theory.

c. Ruling correct, but for wrong reason – affirmed.

2. Summary judgment.

a. A “drastic” remedy.

b. The appellate courts will reverse if “any kind of case is

shown.”


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c. All doubts as to the propriety of granting a motion for

summary judgment are resolved in favor of the party

opposing the motion.

3. Directed verdict.

a. Only where there is no evidence to support the verdict

for the opposing party.

b. The appellate court will accept as true the evidence in

the record which is most favorable to the party against

whom the verdict has been directed.

4. Judgment notwithstanding the verdict.

a. The appellate court views the evidence in the light

most favorable to the party who obtained the jury

verdict.

5. New trial.

a. The court will affirm an order granting new trial if it

should have been granted upon any ground stated in

the motion.

b. All presumptions favor the order.

c. It is rarely reversed.

d. Appellant must show clear abuse of discretion in

granting the motion.


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X. MEDIATION PROGRAM IN THIRD APPELLATE DISTRICT (LOCAL

RULES)

A. Selected for mediation by Court or by stipulation.

B. Mediators are certified by Court after training.

C. First four (4) hours are free. Thereafter, as negotiated between

mediator and parties.

D. Procedure.

1. Suspension of certain rules upon filing civil notice of appeal.

a. Designation of record.

b. Payment of estimated costs to prepare record.

c. If not selected for mediation, suspension of rules

terminate.

(1) Calculate time for due dates from date

specified in notice from court.

d. If selected for mediation, but no success:

(1) Mediation coordinator sends notice terminating

suspension.

2. Court sends out Civil Case Information Statement with Civil

Appeal Mediation Statement.

a. Within 10 days appellant completes forms and serves

and files them.

b. 10 days later, respondent serves and files completed

Civil Appeal Mediation Statement.


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3. On the basis of those documents, court decides if case will

be selected for mediation.

a. If yes, Coordinator furnishes parties with information

about the mediator and the mediator receives the

Mediation Statements.

4. Dates for mediation and pre-mediation conference are

selected.

5. Attended by “all parties and their counsel of record.” If not

an individual, then the party representative with full authority.

a. Also attended by representatives of all involved

insurance companies.

E. Confidentiality.

XI. SHOULD APPEAL BE REFERRED TO APPELLATE COUNSEL?

A. It is usually advantageous to retain appellate counsel.

1. Fresh point of view: new arguments and authority. Greater

objectivity.

2. Trial counsel can actually be too familiar with the case.

3. Appellate counsel has the same vantage point as Court of

Appeal (evaluation of case on bare record).

a. Distance and dispassionate view is an asset; no

emotional baggage.

4. Appellate counsel is familiar with appellate procedures and

standards.


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5. Different skills required. Brief writing is more demanding at

the appellate level and more critical to the outcome. Trial

work is more visceral; appellate work is more academic.

B. When to retain Appellate Counsel.

1. The sooner the better.

2. May provide assistance during post judgment proceedings in

trial court.

XI. SELECTED ISSUES AND FEDERAL APPEALS

A. Staying Enforcement of the judgment.

1. California Law.

a. The need for a bond or undertaking in general

(1) Money Judgments (Code Civ. Proc. § 917.1,

subd. (a)).

(2) Amount: 1.5 times the amount of judgment if

source is admitted surety. (Code Civ. Proc. §

917.1, subd. (b).)

(a) Costs are included in calculation in

general. Attorneys fees may or may not

be.

b. Exception for public entities (1) Section 995.220 of the Code of Civil Procedure


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(a) No bond required for stay as to any

public entity or person acting in official

capacity.

2. When the action is filed in Federal Court.

a. FRCP 62(f): “In any state in which a judgment is a

lien upon the property of the judgment debtor and in

which the judgment debtor is entitled to a stay of

execution, a judgment debtor is entitled, and the

district court held therein, to such stay as would be

accorded the judgment debtor had the action been

maintained in the courts of that state.”

3. Interest on judgment.

a. Interest accrues at 10 percent per annum on money

judgment. (Code Civ. Proc. §685.010.) b. In Federal court post judgment interest rate is based

on T-bill.

(1) Post judgment interest on a judgment in federal

court is calculated from date of judgment at a

rate based on current yield from treasury bills.

(28 USC § 1961.)

(2) Interest commences upon entry of final,

appealable judgment (Dishman v. UNUM Life

Ins. Co. of America (9th Cir. 2001) 269 F.3d


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974, 991) and is computed daily from the date

of judgment to the date of payment,

compounded annually. (Tinsley v. Sea Land

Corp. (9th Cir. 1992) 979 F.2d 1382, 1383.)

(3) Where judgment is reversed for new trial, post-

judgment interest runs from date of entry of the

judgment after the new trial on remand.

(Turner v. Japan Lines, Ltd. (9th Cir. 1983) 702

F.2d 752, 754-757.)

[NOTE: Where Ninth Circuit reverses the district court’s judgment

as a matter of law, remanding with instructions to enter judgment

on the jury’s original verdict, post-judgment interest runs from entry

of the original district court judgment. (Id.; Northrop Corp. v. Triad

International Marketing, SA (9th Cir. 1988) 842 F.2d 1154, 1156-

1157.)]

B. Preserving the record on Federal Court appeal.

1. FRCP 50 In federal court, parties must raise issues in a motion

for directed verdict at the close of evidence in order to

preserve the issue for a post-trial motion for judgment as a

matter of law. (FRCP 50.) Otherwise the issue is waived.

Trial counsel should take care to remember this rule and


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raise all pertinent issues in the motion for directed verdict,

otherwise they will be confronted with the issue of waiver not

only in their post-trial motion for JMOL, but on appeal as

well. Although the appellate court may review purely legal

issues raised for the first time on appeal, it will only do so if

the pertinent record has been fully developed, and its

decision to do so is discretionary. (Scott v. Ross (9th Cir.

1998) 140 F.3d 1275, 1283.)

C. Federal Court – Notice of Appeal.

1. Filing deadlines are set in FRAP 4, and are mandatory and

jurisdictional. The ordinary appeal deadline is 30 days after

entry of the appealed judgment or order on the district court

docket. (Not from the file date and not after notice of entry

as in state court.) Where the United States is a party, the

deadline is 60 days after entry of the judgment or order.

a. One party’s timely notice of appeal extends time for

other parties to appeal to the later of 14 days after the

date of filing of the first notice of appeal, or the normal

time prescribed by FRAP 4(a).

b. Certain “collateral” orders and post-judgment orders

do not merge into the judgment and must be

separately appealed within 30 days after entry of the

order on the docket.


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2. Timely filing of certain post-trial motions automatically toll the

time to file the notice of appeal. (FRAP 4.)

a. Motion for judgment as a matter of law. (FRCP

50(b).)

b. Motions to amend judgment or make additional

findings of fact. (FRCP 52(b).)

c. Motions to alter or amend the judgment. (FRCP 59.)

d. In some circumstances, motions for attorney’s fees.

(FRCP 54(d)(2).)

e. Motions for new trial. (FRCP 59.)

f. Motions for relief under FRCP 60 if the motion is

served within 10 days after entry of judgment. (FRAP

4(a)(4)(A).)

3. Interlocutory orders generally merge into the judgment once

entered and separate notices of appeal are not required, a

single notice of appeal from the judgment will subsume such

orders.

4. Notice of appeal is filed with the district court clerk. (FRAP

3(a)(1).) Filing fees and the appellate docket fee must be

paid at the time the notice is filed - $105. (FRAP 3(e).)

5. Civil Appeals Docketing Statement should be filed with the

notice of appeal.


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6. Notice should identify related cases pending in the court of

appeals and should have attached a Representation

Statement (FRAP 12(b).)

D. Federal Court – Designation of Record.

1. Burden of compiling record on appeal lies with the appellant.

(FRAP 11(a).)

2. Record on appeal consists of:

a. official reporter’s transcript

b. clerk’s record of original pleadings, exhibits, etc. filed

with the district court

c. docket entries – a certified copy of the “docket sheet”

which will be sent to all parties by the district court.

3. The Ninth Circuit requires the parties to prepare excerpts of

record instead of the appendix prescribed by FRAP 30.

(Circuit Rule 30-1.1.)

4. Circuit Rules of 9th Circuit supercede provisions of FRAP 10

for ordering transcripts and designating the record on

appeal.

a. Deadline for ordering transcripts is 30 days after filing

the notice of appeal. (Circuit Rule 10-3.1(d).)

b. Appellant must give the parties notice of the portions

of the transcript he intends to order. The notice must

also contain a statement of issues the appellant


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intends to pursue on appeal. (Circuit Rule 10-3.1(a).)

This notice must be filed within 10 days of filing the

notice of appeal. Notice is not required if the parties

agree on the portions to be ordered, or if the entire

transcript is being ordered.

c. Appellants make payment arrangements directly with

the court reporter(s).

5. The Clerk’s Record remains in the district court for the

parties’ use during briefing. The parties are responsible for

compiling the excerpts of record (consisting of documents

pertinent to the appeal) and submitting that to the court of

appeal.

6. Excerpts of Record must include (Circuit Rule 30-1.3(a)):

a. notice of appeal;

b. the trial court docket sheet;

c. the judgment or interlocutory order appealed from;

d. any opinion, finding of fact or conclusions of law

relating to judgment or order appealed from;

e. any other orders or ruling sought to be reviewed;

f. any relevant jury instructions;

g. that portion of the reporter’s transcript pertinent to the

issues appealed;


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h. portions of exhibits necessary to resolve issues on

appeal;

i. any other documents necessary to resolution of

issues on appeal;

j. the final pretrial order, or if that does not set out the

issues to be tried, the final complaint and answer or

pleadings setting forth those issues; and,

k. where appeal is from grant or denial of a motion,

portion of affidavits, exhibits etc that are essential to

resolution of the issue on appeal.

civil appellate practice · 1. under code of civil procedure section 657, the appellate court...

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