Notice of Appeal: Back to Basics to Avoid Disaster

Gary A. WattPosted by on Jan 29, 2021 in Appellate Practice

Protecting the record for appeal is always a popular topic for legal education programs. After all, securing the hard-fought trial victory or turning around the case that went off the rails can depend on making sure a proper record is made for appellate review. But the most perfectly protected record is meaningless if the notice of appeal is untimely. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (absent timely filed notice of appeal, appellate courts lack jurisdiction). This is a tragedy that should never happen, but it does.

For state court appeals, the place to begin is California Rules of Court, rule 8.104. The “normal time” to appeal is 60 days. Two months to file the notice seems generous. But 60 days from when? And is it always 60 days? A careless examination of rule 8.104 can lead to problems. Fatal problems.

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Summary Judgment & Hearsay Objections: Viable Since Sweetwater?

Gary A. WattPosted by on May 8, 2020 in Anti-SLAPP, California Supreme Court

In Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, the California Supreme Court examined evidence burdens in the context of the anti-SLAPP statute. Despite resolving anti-SLAPP issues, the opinion has serious implications for summary judgment motions that may not be obvious.

In resolving anti-SLAPP issues, Sweetwater analogized to summary judgment motions. In the anti-SLAPP context, once protected activity has been demonstrated, courts are to accept the opposing party’s evidence as true, and see whether the moving party has nonetheless defeated the opposing party’s showing “as a matter of law.” It doesn’t just sound like summary judgment, the Sweetwater Court expressly described the minimal merit prong of an anti-SLAPP motion as a “summary-judgment-like procedure.”

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A Respondent’s Obligation on Appeal: Burden, or Opportunity?

Gary A. WattPosted by on Jul 9, 2019 in Appellate Practice

Every now and then an appeal gets taken that, frankly speaking, shouldn’t be filed. When on the receiving end it’s possible—depending on the extreme lack of merit in the opening brief—to contemplate saving the client the time, effort, and $$$$ involved in preparing a responsive brief. The thinking would be something along the lines of “this stinker has absolutely zero chance of success” (and other more colorful thoughts).  But should the respondent forgo filing a brief and just wait for the Court of Appeal to proclaim the inevitable?

Such a drastic course of action should be avoided.

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Costs and Attorney Fees on Appeal

Gary A. WattPosted by on Feb 13, 2019 in Appellate Practice

If you’ve ever read a California Court of Appeal opinion closing out with “each side to bear its own costs on appeal,” you might have presumed that such wording forecloses an award of attorney fees on appeal. It’s okay, you’re probably not alone. And if you have thought that, and still do, now would be a good time to read a recent Court of Appeal decision which holds otherwise.

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Searching for Appealable Orders

Gary A. WattPosted by on Nov 1, 2018 in Appellate Practice

It would be nice if all appealable orders were listed under Code of Civil Procedure section 904.1.  After all, the statute purports to govern the issue. But any search that ends there on the assumption that if it’s not listed, it’s not appealable, is headed for disaster. As seasoned appellate practitioners know, 904.1 can be just the starting point on the long and winding road of appealability. Failure can mean that the right to appeal is lost—forever. (Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)

Section 904.1 even uses a somewhat deceptive structure. For example, informing the reader that “an appeal may be taken from any of the following.” (Emphasis added.) Maybe that’s just legislative wit, recognizing that although an appeal can be taken, not all appeals should be taken. Ask any Court of Appeal justice, right?

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