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Paralegal Fundamentals of a California Civil Appeal

October 24, 2011

By Barbara Haubrich-Hass, ACP/CAS

A very small percentage of California unlimited civil matters go to trial.  Most civil cases are resolved prior to trial or the rendering of a trial verdict.  From that small number of cases that do reach a trial verdict, an even smaller percentage of those cases are taken up on appeal.  For that reason, unless you work for an appellate attorney, most paralegals are not faced with the day-to-day case management tasks of appellate matters.  This article will focus on four fundamentals that a paralegal can be expected to provide to an attorney when filing an appeal from a trial verdict/judgment with the California Courts of Appeal.

A party may appeal a lower court’s judgment and certain orders in a Superior Court unlimited civil case.  An appeal is filed with the Court of Appeal for the district that the superior court is located.  For example, a judgment entered in the Kern County Unlimited Superior Court is filed in the Fifth District Court of Appeal in Fresno, California.  An appeal is normally based on an argument that a legal error was made by the lower court. 

Getting an appeal off to the right start is critical for a successful appeal.  An error in the beginning stage can be fatal to the case.  There are four fundamental cornerstones that a paralegal initially participates in when initiating an appeal:

1. Properly calculating and filing the Notice of Appeal;
2. Filing a valid Notice of Appeal;
3. Properly designating the record on appeal; and,
4. Properly calculating the briefing process.

Calculating the Notice of Appeal

A Notice of Appeal is a document filed with the court where your case was decided notifying the court and the opposing parties that a party is appealing the court’s decision.  Every appeal begins with the filing of a Notice of Appeal. 

The Importance of Properly Calculating the Notice of Appeal:  There is no room for error in calculating this deadline.  If you file the Notice of Appeal late, there is absolutely no flexibility provided by the court to correct the error.  California Rules of Court [CRC] Rule 8.60(d) allows a reviewing court, for good cause, to relieve a party from default from any failure to comply with the rules with the exception of “the failure to file a timely notice of appeal.”  Additionally, you cannot ask the court for an extension of time to file a Notice of Appeal.  CRC Rule 8.104(b) states that, “no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” 

Calculating the Deadline for the Notice of Appeal:   The California Rules of Court has two rules that govern the deadline for filing a Notice of Appeal:  Rule 8.104 provides for “Normal Time” and Rule 8.108 provides for “Extended Time.” 

a)  Normal Time:    

For most cases, the rule that will be followed for calculating the deadline for the Notice of Appeal is CRC Rule 8.104.  CRC Rule 8.104 (a), entitled “normal time” states that, unless a statute or CRC Rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

1. 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was served;
2. 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
3. 180 days after entry of judgment.  [Emphasis added]

It is important to understand what “entry” means.  CRC Rule 8.104(d) defined what constitutes “entry.”   For purposes of this article, the entry date of a “judgment” is the date the judgment is filed under California Code of Civil Procedure [CCP] § 668.5, or the date it is entered in the judgment book. 

The service of a file-stamped copy of the judgment showing the date it was served has the same effect as a Notice of Entry – they both trigger the date for calculating the deadline to file the Notice of Appeal.

b)  Extended Time: 

There are certain post-trial motions that will extend the time to file a Notice of Appeal.  This is because these motions ask the court to change the judgment.  This extension provides the lower court time to render a ruling on the post-trial motions.  By doing this, it provides the parties with time to see if the judgment will change because of a post-trial motion decision.  CRC Rule 8.108 extends the time to file a Notice of Appeal otherwise provided in CRC Rule 8.104(a).  This rule does not shorten the time to appeal.  Additionally, if the normal time to appeal stated in CRC Rule 8.104(a) is longer, then CRC Rule 8.104 governs.  There are four post-trial motions where CRC Rule 8.108 will extend the time to file a Notice of Appeal: 

1. Motion for New Trial:  If any party files a valid notice of intention to move for new trial, the time to appeal from the judgment is extended for all parties as follows:  (1)  If the motion is denied, until the earliest of (a)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (b)  30 days after denial of the motion by operation of law; or (c)  180 days after entry of judgment.  (2)  If any party serves an acceptance of a conditionally ordered additur or remittitur of damages until 30 days after the date the party serves the acceptance.
2. Motion to Vacate Judgment:  If, within the time prescribed by CRC Rule 8.104 to appeal from the judgment, any party files and serves a valid notice of intention to move, or a valid motion to vacate, the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:  (1)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (2)  90 days after the first notice of intention to move, or motion, is filed; or (3)  180 days after entry of judgment.   
3. Motion for Judgment Notwithstanding the Verdict [JNOV]:  If any party files a valid JNOV and the motion is denied, the time to appeal from the judgment is extended for all parties until the earliest of:  (1)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (2)  30 days after denial of the motion by operation of law; or (3)  180 days after entry of judgment. 
4. Motion to Reconsider Appealable Order:  If any party files a valid motion to reconsider an appealable order under CCP §1008(a), the time to appeal from that order is extended for all parties until the earliest of:  (1)  30 days after the superior court clerk or a party serves 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.

Preparing a Valid Notice of Appeal

CRC Rule 8.100(a) outlines what constitutes a valid Notice of Appeal.  The Notice of Appeal must identify the order or judgment to be appealed, and the notice must be signed by the appellant’s attorney.  There is a Judicial Council form that you can use [APP 002], but you also have the option of filing the Notice in pleading format.  The Notice of Appeal is filed in the Superior Court, and requires two separate filing fees.  The first fee is in the amount of $655 payable to the Clerk, Court of Appeal; and the second fee is in the amount of $100 payable to the clerk of the Superior Court for a deposit of the preparation of the Clerk’s Transcript.  [CRC Rule 8.100(a)(b)]  

It is important to include all appealable orders or judgment in the Notice of Appeal.  With few exceptions, excluding an appealable order or judgment in the Notice will preclude that order or judgment from being considered by the Court of Appeal. 

Designating the Record on Appeal

The Appellate Court does not have the Superior Court’s case file, nor did the Appellate Court participate in the trial of the matter.  Therefore, there must be an official record of the proceedings from the Superior Court for the Appellate Court to review in order to render a decision.  The record on appeal consists of two components: 

1. Reporter’s Transcripts; and,
2. Clerk’s Transcripts or the use of an Appendix.

The Importance of the Record on Appeal:  Great care should be taken when deciding what is to be included in the record on appeal because errors by the lower court are not presumed by the reviewing court.  The lower court’s judgment or order is presumed correct, and the burden is on the Appellant to prove error by the lower court on an adequate record.  [Ketchum v. Moses (2001) 24 Cal. 4^th 1122, 1140-1141.]   The case of Protect Our Water v. The County of Merced (2003) 110 Cal.App. 4^th 362, 364, explains very matter-of-factly why the record on appeal is important:  “When practicing appellate law, there are at least three immutable rules:  first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” 

Calculating the Deadline to Designate the Record on Appeal:  Within 10 days after filing the notice of appeal, an Appellant must file and serve a notice in the superior court designating the record on appeal.

Designating the Record:  The appellant may combine its notice designating the record with its notice of appeal.  [CRC Rule 8.121(a)]   Judicial Council form APP 003 Notice Designating Record on Appeal can be used for the purpose of designating the record, although this is not required.  The notice designating the record must state when the appeal was filed, the form of the record of Superior Court documents, and the form of the oral proceedings.  [CRC Rule 8.121]

Reporter’s Transcript:   The court reporter’s transcript is the written record of the oral proceedings during the trial.  The Appellant can elect not to use a reporter’s transcript in the appeal.  [CRC Rule 8.130(a)(1)]  If the Appellant chooses to proceed without a reporter’s transcript, the respondent may not designate a reporter’s transcript without first obtaining an order from the reviewing court.  [CRC Rule 8.130(a)(4)]

•  Appellant’s Notice:  The notice designating the reporter’s transcript must specify the date of each proceeding to be included in the transcript, and may specify portions of designated proceedings that are not to be included.  [CRC Rule 8.130(a)(1)]  If the Appellant designates less than all of the testimony, the notice must state the points to be raised on appeal.  [CRC Rule 8.130(a)(2)}
•  Respondent’s Response:  If the Appellant designates only part of the oral proceeding, then the Respondent may file a notice of designation of additional oral proceedings within 10 days of service of the Appellant’s designation.  [CRC Rule 8.130(a)(3)]
•  Service:  The notice designating the reporter’s transcript must be served on all parties, and on all known court reporters of the designated proceedings.  [CRC Rule 8.130(a)(5).
•  Fees:  The party designating the reporter’s transcript must deposit with the superior court clerk the approximate cost of transcribing the proceedings it designates.  The deposit is calculated by using either the reporter's written estimate, or an amount calculated at $325 per fraction of the day's proceedings that did not exceed three hours, or $650 per day or fraction that exceeded three hours. [CRC Rule 8.130(b)(1)]

Clerk’s Transcript:  The clerk’s transcript on appeal is a collection of documents that were filed in the superior court. 

•  Appellant’s Notice:  A notice designating documents to be included in a clerk's transcript must identify each designated document by its title and filing date or, if the filing date is not available, the date it was signed.  The notice may specify portions of designated documents that are not to be included in the transcript. For minute orders or instructions, it is sufficient to collectively designate all minute orders or all minute orders entered between specified dates, or all written jury instructions given, refused, or withdrawn. [CRC Rule 8.122(a)(1)]
•  Content:  The transcript must contain the notice of appeal; any judgment appealed from and any notice of its entry; any order appealed from and any notice of its entry; any notice of intention to move for a new trial or motion to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration of an appealed order, and any order on such motion and any notice of its entry; any notices or stipulations to prepare clerk’s or reporter’s transcripts or to proceed by agreed or settled statement; and the register of actions, if any.  [CRC Rule 8.122(b)(1)]  If designated by any party, the transcript must also contain any other document filed or lodged in the case; any exhibit admitted into evidence, refused, or lodged; and, any jury instruction that any party submitted.  [CRC Rule 8.122(b)(3)]  Each document must show the date necessary to determine the timeliness of the appeal.  [CRC Rule 8.122(b)(2)]
•  Exhibits:  All exhibits admitted in evidence, refused, or lodged are deemed part of the record, but a party wanting a copy of an exhibit included in the transcript must specify that exhibit by number or letter in its notice of designation. If the superior court has returned a designated exhibit to a party, the party in possession of the exhibit must deliver it to the superior court clerk within 10 days after the notice designating the exhibit is served.  [CRC Rule 8.122(a)(3)]
•  Respondent’s Response:  Within 10 days after the appellant serves its notice designating a clerk's transcript, the respondent may serve and file a notice in superior court designating any additional documents the respondent wants included in the transcript.  [CRC Rule 8.122(1)(b)]
•  Fees:  Within 30 days after the respondent files a designation, or the time for filing it expires, whichever first occurs, the superior court clerk will send a bill for the estimated cost to prepare an original and one copy of the clerk's transcript.  This must be paid within 10 days from the date the clerk sends the notice.  [CRC Rule 8.122)]

Filing of the Clerk and Reporter’s Transcripts:  After all of the fees have been paid, the superior court clerk will compile the record and forward it to the Court of Appeal.  A copy of the record will be sent to the parties who purchased the record.  [CRC Rules 8.122, 8.130, 8.150]

Appendix:  An appendix can be used in lieu of the Clerk’s Transcript.  It is a transcript of the collection of the documents that were filed in the superior court that the parties would include in the Clerk’s Transcript. 

•  Notice:  The parties in their respective notice designating the record on appeal must notify the court the election to proceed with an appendix. [CRC Rule 8.124(a)]
•  Content:   If the appellant chooses to prepare an appendix of the documents filed in the superior court, rather than designating a clerk’s transcript, that appellant must include all of the documents and prepare it in the form required by CRC Rule 8.124(b).  The parties may prepare separate or joint appendixes. 
•  Fees:  If separate appendixes are prepared, each party must pay for its own appendix.  If a joint appendix is prepared, the parties can agree on how the cost of preparing the appendix will be paid or the cost will be paid by the appellant.  [CRC Rule 8.124(f)]
•  Cover Page:  The cover of an appendix must prominently display the title "Joint Appendix" or "Appellant's Appendix" or "Respondent's Appendix" or "Appellant's Reply Appendix."  [CRC Rule 8.124(d)]
•  Service:  The party preparing the appendix must serve the appendix on each party and file the appendix with the Court of Appeal.  A joint appendix or an appellant’s appendix must be served and filed with the appellant’s opening brief.  A respondent’s appendix must be served and filed with the respondent’s brief.  An appellant’s reply appendix must be served and filed with the appellant’s reply brief.  [CRC Rule 8.124(e)]

Calculating the Briefing Process

Each Appellant must file and serve an Appellant's opening brief.   Each respondent must serve and file a respondent's brief.  Each appellant may serve and file a reply brief.   No other brief may be filed except with the permission of the presiding justice, unless it qualifies under (b) or (c)(6) of CRC Rule 8.200.  Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal.  [CRC Rule 8.200(a)]

Appellant’s Opening Brief:  An Appellant’s opening brief must be serve and filed within:

1. 40 days after the record-or the reporter's transcript, after a Rule 8.124 election-is filed in the reviewing court; or
2. 70 days after the filing of a Rule 8.124 election, if the appeal proceeds without a reporter's transcript.  [CRC Rule 8.212(a)(1)]

Respondent’s Breif:  Respondent’s brief must file and serve within 30 days after the appellant files its opening brief.  [CRC Rule 8.212(a)(2)] 

Appellant’s Reply Brief:  An Appellant’s reply brief, if any, must be served and filed within 20 days after the Respondent files its brief.  [CRC Rule 8.212(a)(3)]

Extensions of Time:  The parties may extend each brief, above, by up to 60 days by filing one or more stipulations in the reviewing court before the brief is due. Stipulations must be signed by and served on all parties. The original signature of at least one party must appear on the stipulation filed in the reviewing court.  The signatures of the other parties may be in the form of copies of the signed signature page of the stipulation.  A stipulation is effective on filing.  The reviewing court may not shorten a stipulated extension.  [CRC Rule 8.212(b)(1)(2)]   In the alternative, before the brief is due, a party may apply to the presiding justice for an extension of each brief on a showing that there is good cause and that:   (a) The applicant was unable to obtain, or it would have been futile to seek, the extension by stipulation; or (b) The parties have stipulated to the maximum extension permitted and the applicant seeks a further extension.  [CRC Rule 8.212(b)(3)]

When the Court of Appeal is notified that a notice of appeal has been filed in an unlimited civil case, the clerk of the Court of Appeal will mail the Appellant a copy of Judicial Council form APP-004, Civil Case Information Statement.  Within 10 days after the clerk mails this notice, the Appellant must file and serve a completed copy of this form, attaching a copy of the judgment or appealed order that shows the date it was entered [CRC Rules 8.100 and 8.104]

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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.