Post-Trial Motions and Time to Appeal

Posted by Rosanna Gan on Feb 28, 2024 in Appellate Practice

If you’ve ever sought the advice of an appellate attorney, or have any experience with appellate law, you probably already know that timely filing of the notice of appeal is critical. In a civil appeal, allowances for a tardy notice are limited to public emergencies, such as earthquake, fire, or the destruction of the courthouse. (Cal. Rules of Court (“CRC”) 8.66.) Otherwise, the appellate court must dismiss a late filed appeal. (CRC 8.104; see also CRC 8.60 [appellate court may not relieve a party from failure to file a timely notice of appeal].)

The deadline to file a notice of appeal is ordinarily governed by CRC 8.104 (re “normal deadline”). However, there are scenarios under which an extended deadline applies under CRC 8.108 (“extended deadline”). In particular, the denial of certain valid post-trial motions—motion for new trial, motion to vacate judgment, motion for judgment notwithstanding the verdict—will allow all parties extended time to file a notice of appeal of the underlying judgment.

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Thank You For Being A Friend

Posted by David Casarrubias on Oct 17, 2023 in Amicus Briefs

A reflection on the changes to the rules governing the filing of amicus curiae briefs in the United States Supreme Court.

Each new year typically comes with slight changes to the rules of appellate procedure, and 2023 was no exception. This year, the Supreme Court rolled out new rules for parties who file amicus curiae briefs. Thankfully, the changes made it much easier to be friends with the Golden Girls (and Boys) on the Court.

The requirements for filing amicus briefs are found in Supreme Court Rule 37. The changes to the rule deal with the requirements for filing amicus briefs before the Court’s consideration of a petition for writ of certiorari (i.e. cert stage briefs), and the rules for filing amicus briefs filed after cert has been granted but before oral argument (i.e. merits briefs). See Rules 37.2 & 37.3.

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Appeals from Summary Judgment Denial

Posted by Patrick Burns on Aug 15, 2023 in Appellate Practice

Federal appellate practitioners are readily familiar with the principle that a district court’s order denying summary judgment is generally not immediately appealable. Instead, an appeal regarding the summary judgment denial must wait until a final judgment has been rendered.  This most often occurs after trial.

But if the parties proceed to trial, to what extent is the defendant who lost the summary judgment motion responsible for re-raising arguments they lost at summary judgment prior to the appeal?

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New Faces of Justice: 2022 California Appellate Appointments

Posted by Adam Hofmann on Jan 31, 2023 in Appellate Practice, California Supreme Court

2022 was a banner year for appointments and elevations to California’s Courts of Appeal. The State’s new Chief Justice and newest Associate Justice of the California Supreme Court led the news, but Governor Newsom also filled a large number of vacancies on the intermediate appellate courts. With all this change, it seemed a good time to take a quick look at the newest justices who will be shaping California jurisprudence in the coming years.

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Appellate Oral Argument: The Ultimate Misnomer?

Posted by Gary A. Watt on Dec 23, 2022 in Appellate Practice

Justice William Bedsworth’s recent column, “Oral Argument: Better Than Oral Surgery,” packs a lot of meanings into the title’s last four words. (See The Recorder, 12/19/2022.) I suppose it might depend on viewpoint, you know, surgeon or patient, the condition in question, the complexity of the problem, and how direct the approach. I’m not speaking of dentistry here.

Getting counsel to answer questions can be like pulling teeth. I was reminded of that yesterday while looking for an oral argument. I landed on the prior case somewhere in the middle of the video. It took three tries to get counsel to directly answer the question. A few years ago, while waiting for my case to be called at the California Supreme Court, an attorney responded with “I’ll come to that one later, Your Honor, I’ve got to tell you this first,” causing an array of facial expressions along the dais. And onward, he sailed.

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Judicial Notice on Appeal (Part Two): Discretionary Subject Matter

Posted by David Casarrubias on Oct 28, 2022 in Appellate Practice

Appellate courts have broad power when it comes to judicial notice, and that power is comprised of two types of matters: mandatory and discretionary. In the first part of this two-part post, I discussed matters that an appellate court must judicially notice. (See Judicial Notice on Appeal: Mandatory Subject Matter, Appellate Insight, October 2021.) This post will discuss those matters that an appellate court may judicially notice.

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How and When to Ask a Court to Overturn Intermediate Appellate Precedents

Posted by Adam Hofmann on Sep 30, 2022 in Appellate Practice

In CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California’s “Anti-SLAPP statute” may be filed in federal diversity actions.  As the court reflected, circuits have split over the federal implementation of the various states’ Anti-SLAPP motions.  See id. at 1142–43.  But the Ninth Circuit’s position on this question has been long settled.  Id. at 1140.  And the Ninth Circuit’s latest published opinion on the issue does not reconsider the merits of the issue or even attempt to defend its rule against the criticism it has faced from other circuits and even Ninth Circuit judges.  See, e.g., Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (Kozinski, J. concurring).  Rather, the decision merely explains the court’s refusal to reverse itself.  The relative merits of its precedent and the strength of a party’s arguments against it are largely irrelevant; a Ninth Circuit panel is bound to follow the court’s past decisions except in exceptional circumstances.  See id. at 1140–43.

So, what is a litigant to do when it has a need and good faith basis to challenge otherwise binding case law from intermediate appellate courts?  Some discussion of the governing principles will help inform an approach.

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