A civil appeal is a legal proceeding that allows a losing party in a civil case to challenge mistakes made in a lower court. Generally, those mistakes must be legal errors, not just adverse factual determinations.
In an appeal, the party that lost in the lower court asks a higher court to change all or part of an order or judgment entered by the lower court. The appealing party is called the appellant.1
It isn’t necessary for the appellant to have lost the entire case in the lower court. They might choose to appeal if they are dissatisfied with a specific aspect of the outcome.
The party that won in the lower court then responds by arguing that the lower court’s outcome should remain the same—or, at least, not be made any worse for them. The party opposing the appeal is called the respondent.2
This article provides an overview of the steps a party must take to bring an appeal from a superior court decision in a California civil case. For the most part, the focus of the article is on appeals in unlimited civil cases to the California Court of Appeal, unless a different kind of appeal is specifically mentioned.
Keep in mind that this article does not offer legal advice. If you need legal advice, you should talk to a lawyer who handles California appeals.
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- 1 Understand the Basics About Appeals in California
- 2 Decide Whether to Appeal
- 3 Prepare, Serve, and File a Notice of Appeal
- 4 Consider Whether to Seek a Stay of Enforcement
- 5 Designate the Record on Appeal
- 6 Complete Early Filings Required by the Court
- 7 Prepare and File the Opening Brief
- 8 Review the Respondent’s Brief
- 9 Prepare and File a Reply Brief
- 10 Attend the Settlement or Prehearing Conference
- 11 Attend Oral Argument
- 12 Review the Opinion and Consider Seeking Rehearing
- 13 Decide Whether to Seek Review in the Supreme Court
Understand the Basics About Appeals in California
Before jumping into the appeals process, it is important to understand some basic information about appeals in California.
California’s Court Structure
In California, there are three basic levels of courts: (1) the superior court, (2) the court of appeal, and (3) the state supreme court.3 Their basic hierarchy can be illustrated as follows:
The superior court is California’s lowest level of court, and it has jurisdiction over all criminal and civil trials.4 The superior courts are sometimes referred to as trial courts. They are the courts in which civil actions are first decided.
Appeals are taken from judgments or orders entered by superior courts. When an appeal is initiated, the case is transferred to an appellate court. There are two types of appellate courts in California:
- The appellate division of the superior court, and
- The California Court of Appeal.5
Both courts follow similar procedures, although appeals in the appellate division are somewhat simplified. And both courts are intermediate courts of review; meaning, they review the decisions of the superior courts, but are below the Supreme Court of California.6
Appeals are heard by the appellate division of the superior court in limited civil cases. Limited civil cases are primarily those in which a lawsuit asks for $25,000 or less in damages.7
Appeals are heard by the California Court of Appeal in unlimited civil cases.8 Unlimited civil cases are those in which a lawsuit asks for more than $25,000 in damages. They can also involve disputes that go beyond the jurisdiction of limited civil courts.
The California Court of Appeal is divided into six appellate districts.9 More than one hundred justices serve on the court of appeal. The number of justices assigned to each district varies.
Each district is responsible for appeals from superior court decisions within the counties that are covered by that district. The jurisdiction of each district covers several counties. You can find your county on the map below to see which appellate district your case will be assigned to:
Three justices from the district in which an appeal is filed are assigned to the panel that will decide the appeal. The parties do not get to choose which justices who decide their cases.
The procedure for bringing an appeal is established by rules that apply statewide and by local rules adopted by the court of appeal within each district. It is helpful to read and understand those rules before following the eleven steps for bringing an appeal in a civil case.
Decisions of the California Court of Appeal can then be reviewed by the Supreme Court of California. The Supreme Court of California is the state’s highest court, and it reviews lower state court decisions.10
How Long Do Civil Appeals Take in California?
A variety of factors contribute to how long an appeal might take to reach a final decision. These factors include the complexity of the issues being argued, the speed at which the parties file their briefs, how quickly the record gets filed, and the size of the appellate court’s docket.
It is not unusual for a case to take more than a year from the time of the filing of the notice of appeal to reach a final decision.
In California civil appeals, the median time for a decision to be reached is roughly 518 days from the date the notice of appeal is filed.11 Again, however, the speed at which cases are decided can vary substantially.
The Timeline in Most Civil Appeals
A basic timeline of the appeals process in California looks something like this:
Of course, every case is different. So the exact timeline may change from case to case.
Decide Whether to Appeal
People who lose their cases in court are sometimes quoted as saying “I’ll appeal this all the way to the supreme court.” Frustration is understandable. But after it passes, the losing party to a lawsuit needs to decide whether the investment of more time, energy, and money in an appeal is likely to be worthwhile.
To make that decision rationally, rather than emotionally, the losing party needs to ask three main questions:
- Do I have the right to appeal?
- Do I have grounds for a successful appeal?
- Is the chance of success worth the time, energy, and money I will need to devote to an appeal?
Before deciding whether to appeal, you might want to get advice from an experienced and trusted lawyer. It is often difficult for someone who does not understand appellate law to formulate reasonable answers to those three questions.
Right to Appeal
Most of the time, the losing party in a California lawsuit has the right to bring an appeal in a California appellate court.12 That right generally extends only to the first appeal.
But not every decision of a trial court can be appealed. An aggrieved party can appeal from an appealable order or judgment, but only if the appeal is timely filed.13
- Who is a party of record, and
- Whose rights or interests are adversely affected by the judgment.16
A party of record includes each plaintiff who brought the lawsuit, and each defendant who was sued. Other people are sometimes allowed to join a lawsuit as parties to protect their interests. A person who does not like the result of a lawsuit but was not a party to it cannot usually appeal its outcome.17
A party’s rights or interests are adversely affected by a judgment if the judgment directly injures them in some way. That injury must be an immediate and substantial consequence of the judgment.18
A party who prevailed in a lawsuit and won all the relief that they sought is not aggrieved by the result and has no right to appeal.
Not every decision a trial court makes can be appealed immediately. An appellate court has jurisdiction over a direct appeal only when there is:
- An appealable order, or
- An appealable judgment.19
Whether a judgment or order is appealable is determined by statute.20
A judgment is the decision of a court that determines the rights of the parties as to a particular cause of action.21 A judgment is a final judgment if it resolves all claims raised in the action.22 A final judgment is generally appealable.23
Judgments and orders are usually only appealable if they are final, but there are some exceptions provided by statutes.24 Additionally, even if an order effectively ends a lawsuit, it can only be appealed if a statute authorizes the appeal.25 When no statute authorizes the appeal from an order, it may be necessary to obtain a judgment before an appeal can be taken.
These rules are intended to avoid piecemeal appeals.26 Trial courts typically enter many orders during the course of a lawsuit. Most of them are not final orders. Allowing every order to be appealed immediately would result in protracted litigation and would impose undue burdens on appellate courts.27
Orders that deny a motion for summary judgment,28 admit or exclude evidence,29 or require a party to answer a discovery request30 are examples of nonfinal orders that usually cannot be immediately appealed.
This does not mean, however, that erroneous court rulings will necessarily go uncorrected. An appeal from a final judgment entered in the lawsuit allows the appellate court to review all adverse rulings made by the trial court, including nonfinal orders that were entered as the lawsuit proceeded.31
When adverse rulings and orders made during litigation may have affected the judgment, they can often be reviewed on appeal from the final judgment.
In California, the right to appeal may be lost if too much time passes after the judgment or order is entered. Strict deadlines govern the filing of an appeal.32 Parties will usually lose the right to appeal if the appeal is not filed before the deadline passes.33
The applicable deadline to file the appeal will depend on the circumstances of the case. This article discusses the various deadlines in Step 3 below.
Grounds for Appeal
It makes no sense to appeal unless there is a reasonable chance of winning the appeal. Evaluating the grounds for appeal is therefore necessary before deciding whether an appeal is worthwhile.
An appeal is not a “do-over” or a second trial. Appellate judges do not sit as a new jury to decide whether they agree with the first jury’s verdict. A party who claims on appeal that the judge or jury should have evaluated the evidence differently is unlikely to prevail.
An appeal has the best chance of success when it turns on questions of law, rather than questions of fact. Juries (or a judge, if the case was decided without a jury) decide questions of fact. Any time a judge or jury is asked to decide what happened, how or why it happened, or who did what, a question of fact must be answered.
Questions of fact usually turn on the credibility of witnesses. When two witnesses have differing perspectives about what happened or why it happened, a jury must decide which witness it believes. Alternatively, if the jury cannot decide which witness is more credible, the jury might conclude that the party bearing the burden of proof failed to meet its burden.
Appellate courts usually do not second-guess a jury’s evaluation of the evidence.34 Appellate judges do not see witnesses testify. They are not in a position to decide whether the jury got it right or wrong.
For that reason, unless it is clear that the evidence did not support a fact that is essential to the verdict, an appeal based on the ground that a judge or jury resolved disputed facts incorrectly will usually be weak and might not be worth bringing.
The strongest appeals are based on claims that the judge made a mistake in applying or interpreting the law. Mistakes of law might include:
- Granting summary judgment to a party based on a mistaken view of the law.
- Applying the rules of evidence incorrectly in excluding or admitting evidence.
- Giving an incorrect explanation of the law to the jury.
- Improperly limiting discovery prior to trial.
- Allowing a lawyer to make an improper argument to the jury.
- Failing to strike a biased juror from the jury panel.
If legal errors can be identified in a ruling that prevented a case from going to trial, or if legal errors prevented a party from having a fair trial, there may be sufficient grounds for appeal to make the appeal worth pursuing.
The best-case outcome for a party who appeals after losing a trial is usually a chance to have a second trial. But that chance might be a year or two down the road, and the outcome of the second trial might not be any better than the first trial.
Before deciding whether to appeal, a party must decide whether the potential benefit of an appeal outweighs its cost. The financial impact of an appeal and second trial are part of the equation, but costs also include the anxiety and investment of time and energy that an appeal will demand.
Appeals make sense in some cases. If a party lost a trial because a judge improperly excluded critical evidence, winning the right to present that evidence at a second trial might change the outcome.
When a substantial sum of money is at stake, even a small chance of winning might make the appeal worthwhile. An appeal might also encourage a favorable settlement, either before or after the appeal is decided.
There is no magic scale upon which all of these factors can be weighed. Experienced appellate lawyers are in a good position to evaluate the merits of an appeal and to decide whether, as a legal matter, it is reasonable to appeal an unfavorable decision. The party considering that legal advice will also need to decide whether he or she is emotionally capable of sticking with the case over the course of the years that might pass before an appeal and a new trial have concluded.
Prepare, Serve, and File a Notice of Appeal
In most civil cases in California, an appeal is initiated by filing a notice of appeal in the superior court.35 The notice of appeal is a simple document, but it must contain certain essential information or the appellate court might decide that the appeal was not validly commenced.
Preparing the Notice of Appeal
A standard form for the notice of appeal is available that contains all the required information. Appellate courts do not require people who appeal to use the standard form,36 but departing from it carries the risk that the appeal will be rejected because vital information is missing from the notice of appeal.37
There are three types of civil cases, each of which have their own notice of appeal form:
- Unlimited civil cases. An unlimited civil case is generally one in which the plaintiff sued for a judgment of more than $25,000. Certain other kinds of civil lawsuits, including family law cases, are also considered unlimited civil cases.38 The standard notice of appeal for unlimited civil cases is Form APP-002.
- Limited civil cases. A limited civil case is generally one in which the plaintiff sued for a judgment of $25,000 or less.39 The standard notice of appeal for limited civil cases is Form APP-102.
- Small claims cases. A small claims case is generally one in which the matters disputed are worth less than $10,000.40 The standard notice of appeal for small claims cases is Form SC-140. Small claims appeals are not addressed in this article.
Each of the forms asks for essentially same information, but in a somewhat different format. Regardless of the format, the notice of appeal must be filled out completely, accurately, dated, and signed before it is filed.
Serving the Notice of Appeal
After the notice of appeal is prepared, a copy must be served on all opposing parties.41 If the opposing party is represented by an attorney, the notice of appeal is served on the attorney. If the opposing party represented himself or herself, the notice of appeal is served on the party.42
The notice of appeal can be served in person by a process server, or it can be mailed through the United States Postal Service.43 In most cases, mailing is a more cost-effective means of assuring service.
The person who mails the notice of appeal to the opposing parties must: be age 18 or older, reside in the county where the notice is mailed, and must not be a party to the lawsuit.44 That person must prepare a proof of service form that specifies the date on which the notice of appeal was mailed and the address to which it was mailed.45
A proof of service form is available on Form POS-040 (for documents filed in the superior court) and Form APP-009 (for documents filed in the courts of appeal). The proof of service form must be signed under penalty of perjury.46
An unsigned copy of the proof of service must be attached to the copy of the notice that is being served.47 The notice of appeal and proof of service must be placed in a sealed envelope, addressed to the party (or the party’s attorney), with correct postage affixed. The envelope must then be deposited in a post office or mailbox.48
Once the notice has been mailed, the person who mailed it must sign the original proof of service. The signed proof of service is then attached to the notice of appeal.49 At that point, the notice of appeal is ready to be filed.
Subsequent steps will describe other documents that need to be served. You should follow the same procedure to serve those documents.
Filing the Notice of Appeal
The notice of appeal and the attached proof of service must be filed with the clerk of the superior court that entered the judgment or order that is being appealed.50
The clerk’s office can direct you to the appropriate counter or room where the notice of appeal should be filed or mailed to.
A $775 filing fee is usually required to be paid when the notice of appeal is filed.51
When the Notice of Appeal Is Due
A notice of appeal may be filed after the appealable judgment or order is entered.52 The deadline for filing the notice of appeal will depend on when the judgment or order from which the appeal is taken has been entered, and how it was served.
A judgment or order is entered when it is filed with the clerk of the superior court.53 The clerk will either stamp the document with the date of filing or will electronically affix a filing date to the document.
If the court has “rendered” its order or judgment, but has not formally “entered” it, the notice of appeal is technically premature. An order or judgment is rendered at the moment the judge signs it, but it is entered when it is filed with the clerk of the superior court.54 Even though the notice of appeal in this situation is premature, the court will accept it and treat it as being timely filed immediately after entry of the order or judgment.55
If the court has announced its order or judgment, but has not formally entered or rendered it, the notice of appeal is premature. Unlike rendered judgments, however, the court is not required to accept it. Rather, the court of appeal has discretion to treat the notice of appeal as timely filed, but is not required to do so.56
Once the appealable order or judgment has been entered, the next question is whether the clerk of the superior court or any party has served a document called a “notice of entry of judgment” or a filed-endorsed copy of the judgment. Like the name implies, a notice of entry of judgment notifies all parties that the judgment has been entered.
In unlimited civil cases in California state courts, the applicable deadline for will usually be the earliest57 of the following:
- If a notice of entry of judgment or a filed-endorsed copy of the judgment was served on or served by the party filing the notice of appeal, the time for filing the notice of appeal is 60 days after judgment was entered.58 This is the deadline in most unlimited civil appeals.
- If no notice of entry of judgment or filed-endorsed copy of the judgment has been served, the time for filing the notice of appeal is 180 days after judgment was entered.59
There are, of course, exceptions to these deadlines. Some statutes or court rules might shorten or lengthen the time to appeal in certain circumstances.60
Late Notices of Appeal Are Not Accepted
Filing the notice of appeal on time is essential. Unless the Notice of Appeal is timely filed, the court of appeal will not have jurisdiction to hear or decide the appeal. The court has no authority to extend the time for filing or to excuse a tardy filing.61
The safest practice is to file the notice of appeal as soon as possible after the appealable judgment or order is entered.
Consider Whether to Seek a Stay of Enforcement
If you were seeking a judgment in your favor and lost, you can probably skip this step. But if a judgment was entered against you, you need to consider the possibility that the judgment will be enforced while the appeal is pending.
A money judgment for $50,000 is entered against you. Filing a notice of appeal, without more, does not prevent the opposing party from collecting it.62 That means your wages or bank account can be garnished to pay the judgment, even though an appeal is pending.
You can try to protect yourself by seeking a stay of enforcement of the judgment. A stay puts the judgment on hold. While the stay is in effect, the opposing party cannot take steps to collect the judgment.
Some Cases Are Automatically Stayed
The default rule in California is that the filing of a notice of appeal automatically stays proceedings in the trial court related to the judgment or order being appealed, including the enforcement of the judgment or order.63 This rule exists because the filing of an appeal normally ends the superior court’s jurisdiction in matters related to the judgment.64 It also can help preserve the status quo while the case is finally decided by the appellate court.65
There are, however, very broad exceptions to this default rule.66 Most importantly, a judgment or order for money is not stayed pending appeal.67 As such, the non-appealing party in a case involving a money judgment can seek to enforce the judgment while the appeal is pending.
Additionally, the trial court may continue proceedings on any issue in the case that is not embraced in or affected by the judgment or order.68
As a result of these broad exceptions, the practical applicability of the default rule is very limited. The most common types of cases that are automatically stayed by the filing of a notice of appeal tend to be judgments or orders that grant injunctions.69
Other Cases Require Additional Steps
If the judgment or order is not automatically stayed by the filing of the notice of appeal, a stay can be often obtained by posting a bond or an undertaking.70
Bonds71 and undertakings72 are types of written guarantees in which a third person (called a surety) promises to pay a sum of money to the non-appealing party if the appealing party loses and fails to abide by the order or judgment that is the subject of the appeal.73
The amount of the bond or undertaking will depend on how it is posted. A bond or undertaking from an admitted surety insurer (a company that is licensed to issue surety bonds or undertakings) must be for 1.5 times the amount of the judgment or order.74 A bond from a personal surety (such as a friend or family member) must be for twice the amount of the judgment.75
The bond or undertaking can also be secured by depositing cash (or certain cash equivalents) with the clerk of the superior court. If this approach is taken, the amount deposited must be equal to 1.5 times the amount of the judgment or order.76
If the appealing party loses the appeal, they will have 30 days from the date the court of appeal issues a document called a remittitur (making the appellate decision final) to pay the judgment and any additional costs awarded by the court of appeal.77 If the appealing party fails to do so, the bond, undertaking, or deposit can be enforced.
Obtaining a Bond or Undertaking
Surety bonds and undertakings can be costly and are not always easy for individuals to obtain. The surety company may want you to provide a full deposit of the funds they are posting, which might make it pointless to incur the cost of obtaining a surety bond.
Additionally, you might have trouble finding a friend or relative who will qualify to post a personal surety bond and who will be willing to risk his or her assets to do so. The qualifications needed to post a personal surety bond are found in the California Code of Civil Procedure, section 995.510. The procedure for posting a personal surety bond is found in the California Code of Civil Procedure, section 995.520.
Even if an appeal bond is required by statute, trial courts have discretion to stay enforcement of the judgment until 10 days after the last day for filing a notice of appeal.78 Filing a motion for that discretionary stay may give you time to obtain a bond.
You will need to persuade the judge that you really intend to appeal and are not just delaying enforcement of the judgment. Filing the appeal and ordering transcripts is one way to do that. Filing the appeal does not change the maximum length of time that the stay can remain in effect.
Designate the Record on Appeal
As Step 2 explained, an appeal is not a new trial. Appellate courts base their decision on court proceedings that have already taken place to assure that the trial judge followed the law. To do that, the appellate courts must review the record from the court below.79
A record on appeal (also called an “appellate record”) is a collection of court filings and transcripts that chronicle the trial court proceedings. Those include documents filed with the trial court, written decisions made by the trial court, and transcripts of hearings held in the trial court (including the trial, if one was held).80
More specifically, the record on appeal consists of those documents and transcripts that have been designated by one of the parties.81 The appellant has the initial and primary responsibility for designating the record on appeal.82
The record on appeal is perhaps the most important part of any appeal. It normally provides the sole factual basis for the appellate court’s decision as well as any arguments made by the parties.83
An appellant cannot base arguments on facts that do not appear in the record on appeal. When an appellate record is deficient in a way that affects the arguments, the court will assume that the lower court’s order or judgment was correct.84 As one California appellate court explained:
“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.”85
For that reason, designating the record is an important part of the process of taking an appeal.
Record on Appeal
The record on appeal consists only of documents that were filed in the trial court and transcripts of hearings prepared by court reporters.86 Absent exceptional circumstances, no new documents can be added that have not previously been filed in the trial court.87
In a typical appeal, the record will consist of:
- The judgment or order from which the appeal is taken.
- Any written decisions the trial judge prepared that are challenged on appeal.
- Transcripts of any oral rulings the trial judge made that are challenged on appeal.
- Transcripts of the trial, if a trial was held.
- Transcripts of all important hearings, particularly if evidence was taken or if the judge made rulings during, or based upon, those hearings that will be challenged on appeal.
- Motions and responses to motions that were filed in the case.
- The initial pleadings.
- Any other documents (such as trial exhibits) that might assist the appellate court in understanding the case.88
The appellate court will not search the trial court’s file for documents that have not been included in the record on appeal. If a document that is important to your appeal is missing from the record on appeal, you might lose the appeal because the appellate court will be unable to verify that your argument is based on facts in the record.
It is vital to include every document in the record that may turn out to be important to the appeal.
Designating the Record on Appeal
It is the appellant’s initial responsibility to designate the record on appeal.89 Designating the record means choosing the documents and transcripts that are part of the court file that need to be included in the record on appeal. Form APP-003 (Appellant’s Notice Designating Record on Appeal) is used to designate the record.
The record on appeal consists of the clerk’s transcript and the reporter’s transcript.90 The clerk’s transcript isn’t really a “transcript” as that term is normally used. Rather, the clerk’s transcript consists of documents in the court file that the appellant has designated for inclusion in the record.
The reporter’s transcript consists of written, verbatim transcripts of hearings, trials, and other proceedings in which a court reporter recorded the oral proceedings. Only those transcripts that have been designated are included in the reporter’s transcript.
If transcripts of court proceedings are needed for the appeal that have not yet been prepared, the appellant requests the preparation of those transcripts by stating on Form APP-003 the date and nature of each hearing for which a transcript is desired. It is the appellant’s responsibility to arrange for payment of the transcript with the court reporter.
You should carefully review the list of documents filed in the trial court to decide which documents should be included in the record on appeal. Many documents, such as notices of court hearings, will typically have no relevance to the appeal and need not be included.
Since you cannot support the appeal by reference to any document that is not included in the record, it is usually better to include a document in the record when there is any doubt as to whether it might become relevant to the issues on appeal.
But if you discover that you need to refer to a trial court document in your brief that you did not designate as part of the record, you can ask the court of appeal to order that document to be added to the record. A copy of the document should be attached to a motion to augment the record.91
Using an Appendix Instead of a Clerk’s Transcript
Some appeals might not require a clerk’s transcript. In those cases, the parties may choose to file an appendix.92 An appendix, in this context, is a collection of documents that would normally be found in the clerk’s transcript.
The appendix should contain every document that is needed to pursue the appeal. In other words, it should contain the same documents that would be designated as the record on appeal.
An appendix can be filed jointly by the parties, or it can be filed separately by either or both of the parties.93 If the appellant files a separate appendix, the respondent can file a separate appendix containing additional documents upon which the respondent’s brief will rely.
An appellant who chooses to file an appendix can make that election in their notice designating record on appeal.
Alternative Record Completion Procedures
The California Rules of Court provide for two other methods of completing the record on appeal:
- Agreed statement.94 An agreed statement can replace all or part of the clerk’s transcript. It recites the facts needed to decide the appeal and must be signed and agreed-to by both parties. It also explains the nature of the action, the basis of the reviewing court’s jurisdiction, and how the superior court decided the points to be raised on appeal.95
- Settled statement.96 A settled statement is generally used to replace or supplement all or part of the reporter’s transcript (and sometimes the clerk’s transcript). It is a condensed narrative of the oral proceedings that the appellant believes necessary for the appeal.97
The two procedures differ in that a settled statement is proposed by the appellant to the superior court. The respondent can then propose amendments to the settled statement. And the superior court will ultimately decide what the statement should say.98 An agreed statement, on the other hand, is decided out of court by the agreement of the parties.
Although an agreed or settled statement can replace parts of other types of transcripts, these methods are relatively uncommon and risky. They should be pursued only after consultation with an attorney.
Finally, in some cases, the parties can stipulate to use the original superior court file instead of a clerk’s transcript. The procedures for doing so are explained in rule 8.128 of the California Rules of Court.
Complete Early Filings Required by the Court
Shortly after the notice of appeal is filed, the clerk of the superior court must notify the court of appeal and all parties in the case of the filing.99 The court of appeal will then assign its own case number to the appeal and will begin to keep track of filings in the appeal.
After filing the notice of appeal but before filing of any briefs, the appellant will need to file two additional documents. While the documents discussed in Steps 3 and 4 are filed in the superior court, most of the remaining documents that need to be prepared in an appeal, including those discussed below, will be filed with the court of appeal.
Civil Case Information Statement
A Civil Case Information Statement (Form APP-004) must be filed within 15 days of the date when the clerk of the superior court notifies the parties that the notice of appeal has been filed.100 A copy of the judgment or order from which the appeal is taken must be attached to the statement.
Sanctions can be imposed, including dismissal of the appeal, if the appellant fails to file the civil case information statement. It is usually wise to file it as soon as possible after receiving the clerk’s notice that the appeal was filed.
The civil case information statement includes two sections. The first section helps the court of appeal determine whether the appeal is being taken from an appealable judgment or order and whether the appeal is timely. That section requires the appellant to:
- Check a box describing the kind of judgment or order that is being appealed. This is essentially the same information that is provided on the notice of appeal.
- State the date of the judgment or order that is being appealed. The correct date is the date of entry, which is the date it was stamped or noted as being filed by the superior court clerk.
- State the date on which a notice of entry of judgment was served, if one was served.
- State whether a motion for a new trial or other motion affecting the validity of the judgment was filed and, if so, the dates on which it was filed and denied.
- State the date on which the notice of appeal was filed.
- State whether a stay has been entered by a bankruptcy court.
- Provide information about any other appeal that was filed regarding the same case.
- State whether any government agency is entitled to be notified of the appeal.
The second section requires the appellant to check a box describing the nature of the lawsuit.
The third section asks the appellant to list the names and addresses of all parties (or their attorneys) who will participate in the appeal.
The final section of the form is a standard proof of service form, indicating how the civil case information statement was served on other parties. Step 3 discusses how documents must be served.
Certificate of Interested Entities or Persons
The Certificate of Interested Entities or Persons (Form APP-008) tells the court of appeal about persons or entities with a financial interest in the case. The court of appeal is primarily concerned about corporations and other business entities that might be affected by the outcome of the appeal.
The justices on the court of appeal use the form to identify potential conflicts of interest.101 The certificate must disclose:
- Every person or entity that owns more than 10% of any entity that is a party to the appeal.
- Every person or entity, other than the parties, with a significant financial interest in the outcome of the appeal.102
The certificate must be filed with the first motion or application that is filed in the appeal.103 If no motions are filed prior to the filing of the appellant’s opening brief, the certificate must be included in the appellant’s opening brief.
Prepare and File the Opening Brief
The briefs constitute the substance of the appeal. The first brief filed by the appellant is called the appellant’s opening brief. It explains, in detail, the factual and procedural background of the case, as well as the legal arguments that the appellant believes justify reversal of all or part of the lower court’s outcome.
Time for Filing
In general, the opening brief must be filed within 40 days of the date the court of appeal gives notice that the record has been filed.104
If the appellant elects to file an appendix (instead of a clerk’s transcript) and no reporter’s transcript has been designated by the parties, the opening brief must be filed within 70 days of the date the appellant files their election to use an appendix.105 The court of appeal will usually provide a notice identifying the date on which the opening brief must be filed.
A party who needs more time to file a brief can ask the opposing party (or that party’s attorney) to agree to an extension of time to file the brief. That agreement cannot extend the filing deadline by more than 60 days. If the other party agrees, a written stipulation is signed by both parties and filed with the court of appeal, which will then set the new deadline that the parties agreed upon.106
If the respondent does not agree to extend the deadline for filing the opening brief, the appellant can file an application with the presiding justice of the court to extend the deadline.107 The application must explain why more time is needed and, if no stipulation with the respondent was obtained, why not. The application must show good cause for the extension of time.108
If the maximum extension time has already been stipulated to and the appellant requires more time, they can also file an application with the presiding justice of the court to extend the deadline.109 Again, the application must show good cause for the extension of time.110
Because there is no guarantee that an extension will be granted (particularly if it is opposed by the respondent or the appellant lacks good cause), it is best to file the brief before the original deadline expires.
Writing a Brief
A brief is a legal argument. It applies the law to the facts of the case in a way that is designed to persuade the appellate court that the trial court made a mistake (if the brief is filed by the appellant) or that the trial court’s decision should be affirmed (if the brief is filed by the respondent).
Writing a persuasive brief requires a thorough understanding of the facts in the record and of the applicable law. The writer of a brief will usually engage in exhaustive legal research to find every statute and case that might have a bearing on the legal issue being briefed.
Briefs should cite statutes, published court decisions,111 relevant portions of the record on appeal, and any other applicable legal authority to support the arguments.
Prior court decisions can be particularly persuasive, especially if they address the same or similar issue in a way that is favorable to the brief’s arguments. If the cases were decided by a higher court in the same jurisdiction, those decisions may be binding on the current court.112
But since each case turns on its own facts, a legal rule that a court applied to one set of facts might not apply to a different set of facts. Briefs often explain to a court why precedents should or should not apply to the case before the court. They can do this by emphasizing facts in prior case law that favor their argument, and explaining why adverse facts are irrelevant to the current case.
Writing a persuasive appellate brief is an art. This step does not attempt to explain all the nuances of crafting a legal argument. Rather, the focus here is on the mechanics of preparing a brief.
If you are interested in further reading on the art of persuasive writing, the following books might be helpful:
- The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, by Bryan Garner (or really anything by Bryan Garner).
- How Judges Think, by Judge Richard A. Posner.
- Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman.
- Making Your Case: The Art of Persuading Judges, by Bryan Garner and Justice Antonin Scalia.
Contents of Appellant’s Opening Brief
Every appellate brief in California must contain certain components. If parts are omitted, the court of appeal might reject the brief. Or the party filing the brief might lose the appeal because information necessary to the decision was not placed before the court.
The components that must be included in a California appellate brief are:
The cover of a brief must contain:113
- The name of the appellate court;
- The case number in the court of appeal;
- The case number in the trial court;
- The names of the parties, in the same order as they appear in the trial court caption, and their designations;
- The names of the trial court and of the trial judge;
- The title of the brief; and
- The name, address, telephone number, and designation of the person who prepared and is filing the brief.114
If a hardcopy of the brief is being filed (as opposed to an electronic filing), the cover of the appellant’s opening brief is green.115 Companies that regularly print briefs will have a supply of the stiff paper that is customarily used for a brief cover.
There are various ways to style the cover. One way is as follows:
Certificate of Interested Entities or Persons
If no motions have been previously filed by the appellant, the opening brief must include a certificate of interested entities or persons (discussed in Step 6). If the certificate has been previously filed, a copy should still be included in the opening brief.116
This certificate must appear as the first page of the brief—immediately after the cover page.117
Table of Contents
Each brief must include a list, followed by page numbers, of each section of the brief.118 The table of contents generally must appear at the beginning of the brief, after the cover page and the certificate of interested entities or persons.
Table of Authorities
Each brief must include a list of each statute, administrative rule, case, treatise, scholarly article, and any other authority relied upon in the brief, with the page number of each page on which that authority is cited.119
The different types of authorities are generally separated into their own lists, and each list begins with a subheading stating the type of authority in the list (e.g., “Cases” or “Statutes”). The authorities in each list are then sorted alphabetically.
Some writers include an introduction or summary of the argument at the beginning of the brief, just after the table of authorities. There is no requirement that your brief include an introduction, but it can help give your readers (namely, the justices) a preview of your perspective of the case.
If your brief addresses simple issues, and introduction may not be necessary. When the argument is more complex or extended, a brief summary of it can focus the minds of busy justices by allowing them to quickly grasp the thrust of your argument.
This introduction can also be placed right before the main argument.
Statement of Appealability
The opening brief must include a description of the judgment or order from which the appeal is taken and citation to the rule or statute that makes that judgment or order appealable.120
This statement is usually very short. It can be as short as one or two sentences, if the facts allow. But some cases require a more detailed explanation of why the case is appealable, if that is an issue.
Statement of the Case
The opening brief must include a short procedural summary of the significant events that took place in the trial court.121 This section is usually called the statement of the case or the procedural history.
This section should include the date on which each event occurred and a citation to the record where that event can be located.122 Citations appear in parentheses following the stated event.
The citation format is usually: the volume number of the transcript in which the fact appears; “RT” or “CT,” depending on whether the citation is to the reporter’s transcript or the clerk’s transcript, respectively; and page number where the fact can be found in that transcript.
Joint appendices are commonly abbreviated “JA,” and augmented transcripts are abbreviated “ART” or “ACT.”
(1 RT 17) would be used to cite to page 17 of volume 1 of the reporter’s transcript.
Significant events might include, for example, the filing of a civil complaint, an order excluding important evidence, the trial of the lawsuit, the entry of judgment, and the filing of the notice of appeal.
An event should generally be regarded as significant if the appellant will need to refer to it when arguing the appeal.
Statement of the Facts
The opening brief must include a statement of facts.123 The statement of facts is a summary of the evidence before the trial court or other facts that are necessary to understand the issues raised on appeal.
The statement of facts should be a relatively neutral recitation of relevant facts—regardless of whether they are helpful or harmful to your case. In cases that went to trial, a well-written statement of facts tells the story of the events that caused the lawsuit to be filed as they were described at trial, but only to the extent that those events are supported by the record.
Each fact must be supported by a citation to the part of that record where the fact appears.124 Citations appear in parentheses following the stated fact, in the same format as mentioned in the statement of the case.
The argument is perhaps the most important section of any brief. It provides a detailed explanation of the legal arguments the appellant believes justify reversal of all or part of the lower court’s outcome.
Each issue raised on appeal must be discussed under a separate argument heading.125 Examples of argument headings might be:
I. The undisputed evidence established that appellant was misclassified as an exempt employee.
II. The trial court erred by excluding the expert testimony of appellant’s therapist.
If an argument is lengthy or complex, it may be useful to break it into separate subsections, each preceded by a subheading.
At the beginning of each argument, you must identify the standard of review that will govern the court’s consideration of that argument. A standard of review defines the degree to which the court of appeal is required to defer to trial court rulings. The three most common standards are:
- Question of law. If the issue concerns a question of law (such as the meaning of a statute), the court of appeal will decide the issue independently.126 Courts also refer to this standard as de novo review.
- Question of fact. If the issue concerns a disputed question of fact (such as whether or why a particular event occurred), the court of appeal will review the case to determine whether substantial evidence supports the outcome. The evidence is “substantial” when it is reasonable in nature, credible, and of solid value.127 The court of appeal will not second-guess a lower court’s assessment of witness credibility or its resolution of conflicting testimony.128
- Abuse of discretion. If the issue concerns the trial court’s exercise of its discretion (such as the decision to exclude evidence that the court believes to be unfairly prejudicial), the court of appeal will uphold the trial court’s decision if it is based on reason and is consistent with the facts.129
Parties will generally need to do legal research to determine the appropriate standard of review. Start by finding cases that have addressed similar issues and note how the appellate court characterized its standard of review in those cases.
Additionally, parties must support their arguments by citing statutes, precedents, or other legal authorities that help their position.130 When lawyers write briefs, they typically summarize the law, then explain how the law applies to the facts of the case.
When other appellate court decisions have reached conflicting results in similar cases, the brief should explain why precedents that are favorable to the desired outcome should be followed while distinguishing precedents that are unfavorable to that outcome.
The format for citing legal authority is determined by one of two reference guides:
- The Bluebook: A Uniform System of Citation, or
- The California Style Manual.131
It may be easier to use The California Style Manual because it is available online at no cost, while access to The Bluebook requires a purchase or a paid subscription. After choosing a citation format, that format should be used consistently throughout the brief.
The conclusion is a brief summary of the argument and a request for the court of appeal to take a specific action.
An appellant usually asks the court of appeal to reverse or vacate the trial court’s judgment or order and to take some additional action, such as remanding the case to the lower court for a new trial or remanding with instructions to enter judgment in the appellant’s favor.
A signature is not required by the rules, but it is customary to sign and date the brief.132
Certificate of Word Count
Every appellate brief must include a certificate of word count (sometimes called a “certificate of compliance”).133 The certificate of word count tells the court of appeal that your brief complies with the length limits discussed below. The text of the certificate of word count can read:
Appellate counsel certifies in accordance with California Rules of Court, rule 8.204(c), that this brief contains ___________ words as calculated by the software in which it was written. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
You must sign and date the certificate of word count.134
Proof of Service
Every filing in the court of appeal must include a proof of service.135 Step 3 discusses how to serve documents.
Each brief must be served on the attorney for each party that is represented by an attorney. Or, if the party is not represented by an attorney, the brief should be served on each unrepresented party.136 Briefs must also be served on the superior court clerk for delivery to the trial judge.137
In some cases, the law requires additional persons or entities to be served.138
If the appellant is filing an appendix instead of a clerk’s transcript (explained in step 5), the appendix must be filed as a separate document. It cannot be combined with the brief.
The appendix must begin with a cover that matches the cover of the appellant’s opening brief, except the title is “Appellant’s Appendix” or “Joint Appendix.”139
The cover of the appellant’s appendix is green. The cover of a Joint Appendix is white.140
Length of the Opening Brief
An opening brief prepared on a computer must not exceed 14,000 words, including footnotes.141 The word count does not include the cover, the certificate of interested entities or persons, the table of contents, or the table of authorities.
When checking the word count and preparing the certificate of word count, make sure your word count includes footnotes. On Microsoft Word and some other word processing programs, you need to check a box to include footnotes in your word count.
If your brief is prepared on a typewriter, it must not exceed 50 pages.142
If the appellant has a good reason, the courts will sometimes permit the appellant to file a brief that exceeds the word or page limit.143 To do so, the appellant must file an application to the presiding judge.
Because there is no guarantee that an application for an overlength brief will be granted, it is best to prepare a brief that is within the normal word limits, if possible.
The brief must also follow certain rules:
- Interior pages should be printed on white paper of at least 20-pound weight. The paper must be standard size (8.5 inches by 11 inches).144
- The cover should ideally be printed on a heavier paper known as cardstock. Copying services and printers that are familiar with legal briefs will have a supply of cardstock.
- The body text of the brief must be at least a 13-point font, and the line-spacing must be at least one-and-a-half-spaced.145
- Headings, footnotes, and blockquotes can be single spaced.146
- Side margins must be 1.5 inches. Top and bottom margins must be 1 inch.147
- Pages must be numbered using only Arabic numerals. The cover is page 1, although that number may be hidden. Every page number after that must appear on the bottom of the page.148
Whether the brief should be bound or unbound depends on the local rules of the court of appeal in the district where the brief will be filed. It is important to read and understand the local rules before preparing and filing a brief.
Filing the Brief
In some districts, briefs can be filed electronically by following the instructions the website for the district in which the brief must be filed.
An e-filed brief must be filed in a searchable PDF format and must be given a filename that follows the format specified on the court’s website. Failure to follow those rules may prevent the brief from being filed.149
The format of the brief is generally the same, whether the brief is printed or e-filed. Some rules, however, such as the weight of the paper on which the brief must be printed, will only apply to printed briefs.
Even if the brief is e-filed, local rules may require a specified number of printed copies (typically 3) to be filed with the clerk of the court of appeal for the district in which the appeal is pending.
If the brief is not e-filed, the appellant must file the original and 4 paper copies of the brief with the clerk of the court of appeal in the district where the appeal is pending.150 In addition, the appellant must provide one copy of the brief in text-searchable PDF format. The electronic copy must exactly duplicate the written brief.151
Review the Respondent’s Brief
After the opening brief, each respondent must file a brief.152 Their brief is called the respondent’s brief. If there is more than one respondent, they can join in or adopt by reference all or part of one of the other briefs in the case.153
The respondent’s brief is due 30 days after service of the appellant’s opening brief unless one or more extensions of time are taken.154 It must contain an argument that addresses the arguments raised by the appellant. The cover of the respondent’s brief is yellow.155
The respondent’s brief generally should include most of the same sections that an opening brief would include. But respondents are not required to include a statement of appealability, a statement of the case, or a statement of facts—although they may include any of those sections if they disagree with the statements in the appellant’s opening brief.156
The respondent’s brief must be served in the same manner as the opening brief. Meaning, it must be served on the attorney for each party or, if the party is not represented by an attorney, the brief should be served on each unrepresented party (including the appellant).157 And it must also be served on the superior court clerk for delivery to the trial judge.158
The appellant should review the respondent’s brief carefully, taking note of any facts that are misstated or that are not supported by the record. They should also review any cases and statutes cited in the brief to determine whether they support the proposition for which they are cited. That review will give the appellant a basis for drafting a reply brief.
Prepare and File a Reply Brief
After reviewing the respondent’s brief, the appellant may, and usually should, prepare and file a reply brief.159 This last brief is called the appellant’s reply brief.
If the appellant disagrees with any assertion made in the respondent’s brief and does not challenge it in a reply brief, the court of appeal might regard that failure as an admission that the assertion is true.
Contents of the Reply Brief
A reply brief must generally contain these components:
- A cover page,160
- A table of contents,161
- A table of authorities,162
- An introduction (optional),
- An argument section,
- A conclusion section,
- A certificate of word count,163 and
- A proof of service.164
The appellant’s reply brief should not contain new arguments. The court of appeal will disregard new arguments because the respondent has no chance to address them.165 Rather, the reply brief should consist of a response to arguments made in the respondent’s brief.
Length and Format
The reply brief must have a tan cover.166 The cover is identical to the appellant’s opening brief, except that the title is “Appellant’s Reply Brief.”
In other respects, the rules for formatting the appellant’s opening brief also apply to the appellant’s reply brief, including the 14,000 word limit.167 The rules that govern filing and service of the opening brief also govern the reply brief.168
Time for Filing
The appellant’s reply brief must be filed within 20 days after the respondent’s brief is filed, unless one or more extensions of time are taken.169 The reply brief is the last brief filed in the case unless the court of appeal orders supplemental briefing or one of the parties pursues a rehearing.
Attend the Settlement or Prehearing Conference
The court of appeal generally encourages the parties to an appeal to settle before the appeal is decided.
Since most lower court decisions are affirmed on appeal, a settlement might give the appellant a better outcome than they would achieve by waiting for the appeal to be decided. A settlement may also benefit the respondent by removing the risk of losing the appeal and by saving the respondent the cost of defending the appeal.
Unless a trial court error was obvious, respondents typically have more bargaining power during settlement negotiations. Both parties will need to weigh the benefits of winning and the risk of losing the appeal against any settlement offer.
Parties should consult the local rules of the court of appeal in the district in which their appeal is pending for specific information about the court’s settlement program. In many districts, the court will invite the parties to participate in a settlement conference. The court usually sends that invitation soon after the notice of appeal is filed.
If the parties agree to participate in the settlement conference, they sign a form that is provided for that purpose and file it with the court. Participation is usually voluntary.
After receiving the form, the court appoints a court official to preside over the settlement conference. That official decides how to conduct the conference.
The settlement conference may be held before or after briefs have been filed, depending on when the request for a settlement conference is filed. If it is held before briefs are filed, the court official may ask for written submissions before the settlement conference so that the official can evaluate the strength of each party’s case.
At the settlement conference, the court official must be neutral, but may provide an objective assessment of the strengths and weaknesses of each party’s position. That assessment might favor one party or the other and might inform the party’s decision to accept or reject a settlement.
If the parties are able to arrive at a settlement, the appellant prepares and files a notice of settlement with the court of appeal.170 That notice has the practical effect of putting the appeal on hold. It is a good idea to have the terms of the settlement reduced to writing and signed by all parties before the notice is filed.
If the record has not been filed, then within 45 days of the date the notice of settlement is filed, the appellant can serve and file an abandonment of the appeal in the superior court.171
If the record has been filed in the court of appeal, then within 45 days of the date the notice of settlement is filed, the appellant can serve and file in that court a request or a stipulation to dismiss the appeal.172 When this is filed, the court of appeal will usually immediately dismiss the appeal.
If the appellant neither abandons nor dismisses the case in the time required, the court may dismiss the appeal on its own motion.173
If the settlement is not carried out pursuant to its terms within 45 days, the appellant can notify the court that good cause exists to move forward with the appeal.
The court of appeal may decide to schedule a prehearing conference.174 This conference is usually mandatory.
The court is most likely to schedule a prehearing conference when issues raised by the appeal are complex, when the parties have filed motions that the court needs to discuss with the parties, or when the court wants to receive early notice of the issues that they will be asked to decide on appeal.
If the court schedules a prehearing conference and the briefing of the case has not yet finished, the time to file the next brief in the case is tolled until the date the court of appeal sends notice that the conference is concluded.175
Attend Oral Argument
Appeals in the California Court of Appeal are decided by a panel of three justices (judges).176 They base their decision on the arguments the parties make in their briefs, which they will either accept or reject, either in whole or part.
The parties are also entitled to present an oral argument. An oral argument is the opportunity to argue the case in person and to engage in a dialogue with the justices who will decide the case. The parties cannot, however, raise new issues in an oral argument that were not addressed in their briefs.
California law regards oral argument as a right if the justices intend to decide the case on its merits with a written opinion.177
Requesting or Waiving an Oral Argument
Oral argument procedures vary, depending on the district in which the appeal is pending. The parties will generally receive a letter from the court advising them of their opportunity for an oral argument. That letter is typically sent after briefing is completed.
Some districts automatically schedule an oral argument. They may, however, ask parties to respond to the notice of oral argument by providing an estimate of the time they will need. If a party fails to respond to that request, the court may assume that the party is waiving the opportunity for oral argument. If neither party responds, the court may cancel the argument.
Some districts provide parties with notice that they must request oral argument. The court may also provide a form for that purpose. A failure to make that request might be construed as a waiver of the right to make an oral argument.
Oral Argument Procedures
After the court schedules the argument, the parties will receive a notice of the time and place where the argument will be held. Failure to appear will result in a waiver of the right to present an oral argument.
The maximum amount of time each side receives for an oral argument is 30 minutes.178 Some courts automatically schedule a shorter argument unless the parties request a longer one.
During oral argument, the appellant can reserve a portion of its argument time for rebuttal. To do so, the person conducting the argument should tell the court when the case is called that they wish to reserve time for rebuttal.
If you are the appellant and you decide to ask for 10 minutes in which to present your oral argument, you might want to reserve 2 minutes to respond to arguments made by the respondent. You would then give an 8-minute argument, listen to the respondent’s argument, and give a 2-minute rebuttal argument.
When your time expires, you will receive a signal. At that point, you should thank the court and return to your table. If you are in the middle of a sentence, however, you can ask the court for permission to finish it.
The procedure the courts follow on the day of argument vary a bit from district to district, and even from panel to panel. Some courts set the order of the cases to be argued in advance, while other courts wait until the parties arrive to decide the order in which cases will be argued.
The parties probably will not know the exact time of their argument in advance. Some cases settle and parties occasionally decide to waive argument, so the argument schedule is necessarily fluid. Parties should arrive in court early and be prepared to argue their case whenever it is called.
Making an Oral Argument
An oral argument that merely restates the content of the briefs is of little value to the justices. You should assume that the Justices have read the briefs. Think about how you can amplify your strongest arguments or bolster your weakest ones.
Time passes quickly during an oral argument. The best strategy is sometimes to start with your strongest argument. If you think the trial judge clearly failed to follow the law and if that failure caused a denial of justice, explaining your reasoning in simple but forceful language will probably be the best use of your time.
Justices often use oral argument to clarify facts or positions that are not clear from the briefs. Justices therefore tend to use much of the argument time posing questions and listening to the parties respond. Answering those questions directly and convincingly in a way that benefits your case will be of more value than regurgitating arguments that you already made in your brief.
Since you will probably be asked questions, sticking to a script is a bad idea. A justice will probably interrupt your argument to ask a question, and the question may be entirely unrelated to what you are arguing at that moment.
You need to be flexible in your presentation so that you can answer the court’s questions. Arguing from an outline of the key points you want to make is better than arguing from a script.
Justices sometimes play “devil’s advocate” when they ask questions. For that reason, the questions the justices ask do not necessarily provide an indication of how they are thinking about the case.
Some districts issue a “tentative decision” before oral argument. The tentative decision may be sent to the parties in advance of the argument or it may be available on the day of argument, before the justices take the bench. Reviewing the tentative decision, if there is one, gives you the chance to tailor your argument to errors that you perceive in the court’s reasoning.
Review the Opinion and Consider Seeking Rehearing
After the court of appeal decides the case, it will issue a written decision. The decision will state the outcome and the court’s reasoning. The court might:
- Affirm the trial court’s rulings in their entirety, which will leave the judgment or order unchanged;
- Modify the judgment or order in some respect, and affirm it as modified;
- Reverse or vacate the judgment or order and remand the case to the trial court for further proceedings, perhaps with the direction to take specific action, such as deciding a disputed factual issue or holding a new trial;
- Reverse the judgment and enter a judgment of its own;
- Affirm in part and reverse in part; or
- Dismiss the appeal (usually for lack of jurisdiction).
You will need to review the decision carefully before deciding how to proceed. Unless the decision represents a complete victory, you will need to decide whether to take additional action.
You can either: live with the court’s decision, petition the court for a rehearing, or petition the Supreme Court of California for review of the court of appeal’s decision.
Petition for Rehearing
If you do not receive the full relief that you requested, you can petition the court of appeal for a rehearing.179
Petitions for rehearing are rarely granted, but it might be worth doing if the court obviously overlooked or misunderstood a key fact that affected its reasoning. Unless that fact appears in the record, however, you cannot rely upon it as a basis for requesting a rehearing.
To have any chance of success, a petition for rehearing should try to demonstrate that the court of appeal made a substantial error. The petition can be based on either a factual or a legal error. As a practical matter, courts are more likely to acknowledge that they made a mistake about the facts than a mistake about the law.
If the court made a mistake of fact that, in the court’s view, is not significant to its decision, the court may release a modified opinion that corrects the error while denying the petition for rehearing. Only when factual errors are significant is the court likely to grant a motion for rehearing based on its concession that it made a substantial error.
Restating arguments that were already raised in the appeal is not likely to result in a rehearing, since the court presumably considered those arguments in rendering its decision. A party might, however, detect a flaw in the court’s reasoning that was not discussed in the briefs. That flaw might support an argument that the court made a substantial error in its decision.
On occasion, a party might be able to cite a controlling or persuasive precedent that did not exist (or had not been published) when the briefs were filed. Petitions for rehearing cannot be based on existing precedent that a party simply overlooked when the brief was filed, but it is appropriate to base a petition on a case that was decided after briefing ended and either before or after the court of appeal released its decision.180
Also, if the court of appeal based its decision on an issue that was not briefed by the parties, a rehearing must be granted to give the parties a chance to argue the issue.181 That rarely happens, since the court will normally invite parties to file supplemental briefs before it decides the case if it concludes that the briefs do not address a dispositive issue.182
Preservation of Error
Before petitioning the Supreme Court of California to review the court of appeal’s decision, consider whether the petition will argue that the court of appeal misstated or omitted an important fact. If so, it may be necessary to file a petition for rehearing in order to preserve that issue for supreme court review.
The failure to raise a contention about the law or facts in a case may prompt the supreme court to decide that the claim of error was waived by failing to give the court of appeal a chance to correct its mistake.183
Time for Filing Petition
The petition for rehearing must be filed within 15 days of the date the court of appeal’s decision is entered.184 A petition for rehearing can only be granted before the court of appeal’s decision becomes final. In most cases, decisions become final 30 days after they are entered.185
A few decisions (such as dismissal of the appeal upon the request of the parties) become final immediately.186 In those cases, no rehearing can be granted.
If a petition for rehearing is not granted before the court of appeal’s decision becomes final, the court of appeal loses jurisdiction to grant it.187
Decide Whether to Seek Review in the Supreme Court
An appeal to the California Court of Appeal is an “appeal of right,” meaning that the appellant has the right to file the appeal and to have the appeal decided. If the court of appeal has jurisdiction and if the appeal is from an appealable order or judgment, the court of appeal must hear the appeal.
An appellant who loses an appeal in the court of appeal can seek review of that decision by the Supreme Court of California. Unlike an appeal to the court of appeal, however, the appellant has no right to review by the supreme court. Rather, the supreme court’s review is discretionary.
Discretionary review means that the California Supreme Court picks and chooses the cases it wants to hear. Unless good grounds exist for supreme court review, it may not be worth the time and expense of asking the supreme court to decide the case. The odds are always against the supreme court agreeing to review a court of appeal decision. In most years, the supreme court grants review in less than 5% of the civil cases it is asked to review.
As a general rule, the supreme court does not consider itself an “error correcting” court. If an error was made by a trial court, it is usually the responsibility of the court of appeal, not the supreme court, to correct the error.
The supreme court typically reviews cases that raise important issues of law, particularly when those issues are new or novel, or when the supreme court believes that the court of appeal based its decision on a precedent that is no longer a sensible view of the law. The supreme court may also review a case if the court of appeal’s decision appears to be in conflict with the decision made in another case decided by the court of appeal (usually in a different district), if it may be in conflict with controlling precedent of the Supreme Court of the United States, or if it appears to be out of step with the way the law is developing in other states or in federal courts.
Filing the Petition
If the party is self-represented and they opt to file hardcopies of the petition for review, it should be filed by delivering it to the clerk of the supreme court at its San Francisco office. The petition must be accompanied by a $710 filing fee.190 The party must file the original and 13 copies of the petition.191
The petition must also be served on the opposing party,192 the clerk of the court of appeal,193 and the clerk of the trial court,194 following the procedures described in Step 3 for serving the notice of appeal and other appellate documents.
Time for Filing
A petition for review must be filed within 10 days of the date the court of appeal’s decision becomes final.195 In the absence of a rehearing, the decision usually becomes final 30 days after it is filed with the clerk of the court of appeal.196 The filing date appears on the court of appeal’s decision.
If the 10th day falls on a Saturday, a Sunday, or a holiday, the time limit is extended until the next day that the court is open for business.197 However, if the court of appeal’s decision becomes final 30 days after the decision is filed, the 10-day period begins to run on the next day (i.e., the 31st day) even if the 30th day falls on a weekend or holiday.198
The petition for review is deemed “filed” on the date it is e-filed or on the date a physical petition is received by the clerk of the supreme court.199 The court will also accept the petition as being timely filed if it is mailed before the filing deadline expires, but only if it is mailed by priority or express mail or provided for delivery to an overnight delivery service.200
The time limit for filing cannot be extended.201
Contents of Petition
The petition for review generally follows the format of the appellant’s opening brief, except it must include:
- A statement of the issues presented for review;
- An explanation of why the case merits supreme court review; and
- A statement explaining how a petition for rehearing was decided, if one was filed, or a statement that no petition for rehearing was filed.202
The cover should be identical to the appellant’s opening brief except:
- The title of the document is “Petition for Review,” and
- The cover of the petition is white.203
The petition cannot exceed 8,400 words (or 30 pages if typewritten).204
Drafting a Petition for Review
Unlike the appellant’s opening brief, the emphasis in a petition for review is not on making a legal argument in support of reversing the trial court’s decision. The petition instead emphasizes the reasons the supreme court should accept the case for review.
If the supreme court grants the petition, it will order briefing on the merits, and the appellant will then have a full opportunity to make a legal argument in favor of reversing the trial court’s decision.
The petition should be drafted with the purpose of supreme court review in mind. In other words, arguing that the court of appeal made an error will probably not persuade the supreme court to take the case, unless it is an egregious error of law that is likely to affect other cases.
Rather, it is important to argue that supreme court review is necessary to advance the law, to resolve a new or novel issue of law, or to resolve a conflict in appellate decisions.
Additionally, the supreme court will not usually entertain new issues or arguments that were not considered by the court of appeal.205 However, that rule is based on policy rather than a limitation on the court’s authority.
If there is a good reason to address an issue that was not raised in the court of appeal, the supreme court has the power to do so. An important court decision that changed the law after briefs were filed in the court of appeal might be an example of a good reason for raising an argument for the first time in the supreme court.
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Code Civ. Proc., § 902 [“A party appealing is known as an appellant, and an adverse party as a respondent.”]; Cal. Rules of Court, rule 8.10, subd. (1) [“‘Appellant’ means the appealing party.”].Footnote 1
Code Civ. Proc., § 902; Cal. Rules of Court, rule 8.10, subd. (2) [“‘Respondent’ means the adverse party.”].Footnote 2
Cal. Const., art. VI, § 1 [“The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record.”].Footnote 3
Cal. Const., art. VI, § 4; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015), available here.Footnote 4
Code Civ. Proc., §§ 904.1, 904.2.Footnote 5
Cal. Const., art. VI, § 3; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015).Footnote 6
Code Civ. Proc., § 904.2 [“An appeal of a ruling by a superior court judge or other judicial officer in a limited civil case is to the appellate division of the superior court.”]; Cal. Rules of Court, rule 8.820; Cal. Const., art. VI, § 4 [“In each superior court there is an appellate division. The Chief Justice shall assign judges to the appellate division for specified terms pursuant to rules, not inconsistent with statute, adopted by the Judicial Council to promote the independence of the appellate division.”].Footnote 7
Code Civ. Proc., § 904.1, subd. (a) [“An appeal, other than in a limited civil case, is to the court of appeal.”].Footnote 8
Gov. Code, § 69100.Footnote 9
Cal. Const., art. VI, § 2; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015).Footnote 10
Jud. Council of Cal., 2016 Court Statistics Report, Statewide Caseload Trends, at p. 28.Footnote 11
Code Civ. Proc., § 902 [“Any party aggrieved may appeal in the cases prescribed in this title.”]; Cinel v. Christopher (2012) 203 Cal.App.4th 759, 766, fn. 4 [appeals “are heard as a matter of right”].Footnote 12
Code Civ. Proc., § 904 [“An appeal may be taken in a civil action or proceeding as provided in Sections 904.1, 904.2, 904.3, and 904.5.”].Footnote 13
Code Civ. Proc., § 901; Estate of Lagersen (1962) 210 Cal.App.2d 788, 791 [“only aggrieved parties may appeal”].Footnote 14
Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal. App. 4th 289, 295.Footnote 15
Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670, 1676.Footnote 16
County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 [“It is generally held, however, that only parties of record may appeal . . . .”]. In unusual circumstances, someone who is adversely affected by the outcome of a lawsuit may take action that will permit an appeal from the judgment. (County of Alameda v. Carleson, supra, 5 Cal.3d 730, 736; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal. App. 4th 289, 295.)Footnote 17
County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.Footnote 18
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.”].Footnote 19
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [“A trial court’s order is appealable when it is made so by statute.”]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 557 [“a plurality of our Supreme Court endorsed the view that the right of appeal in California is purely a creature of statute, not a constitutional right.”].Footnote 20
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 [“A judgment is the final determination of the rights of the parties.”]; Code Civ. Proc., § 577 [“A judgment is the final determination of the rights of the parties in an action or proceeding.”].Footnote 21
Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 736–743; UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028, 1035 [“[A] judgment is ‘final,’ so as to be appealable, when no further judicial action by the court is essential to the final determination of the rights of the parties to the action.”].Footnote 22
Code Civ. Proc., § 904.1 [allowing appeals to be taken from judgments, except interlocutory (nonfinal) judgments, and from certain listed orders].Footnote 23
Turner v. Los Angeles Realty Board, Inc. (1965) 233 Cal.App.2d 755, 758 [“With certain statutory exceptions not herein involved, it is the fundamental rule in California, as in most jurisdictions, that no order or judgment may be appealed from unless it finally disposes of the case in the trial court.”].Footnote 24
Hennigan v. Boren (1966) 243 Cal.App.2d 810, 815 [“The right of appeal is wholly statutory and no judgment or order is appealable unless expressly authorized by the Constitution or statute.”].Footnote 25
Knodel v. Knodel (1975) 14 Cal.3d 752, 760.Footnote 26
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.Footnote 27
Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256 [“an order denying summary judgment is not an appealable order”].Footnote 28
Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 214.Footnote 29
Adams v. Superior Court of San Bernardino County (1957) 49 Cal.2d 427, 430 [“An order permitting inspection is not appealable.”]; Dowell v. Superior Court of San Francisco (1956) 47 Cal.2d 483, 486.Footnote 30
Code Civ. Proc., § 906 [“the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party”].Footnote 31
See, e.g, Norman I. Krug Real Estate Investments v. Praszker (1990) 220 Cal.App.3d 35, 46 (1990) [“‘If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review'”], citation omitted.Footnote 32
See, e.g., Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 [“[W]hen [a notice of appeal] has not in fact been filed within the relevant jurisdictional period—and when applicable rules of construction and interpretation fail to require that it be deemed in law to have been so filed—the appellate court, absent statutory authorization to extend the jurisdictional period, lacks all power to consider the appeal on its merits and must dismiss, on its own motion if necessary, without regard to considerations of estoppel or excuse.”].Footnote 33
Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 78 [“appellate courts have no authority to simply second-guess the conclusion reached by the fact finder”].Footnote 34
See Cal. Rules of Court, rule 8.100, subd. (a) [“To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court.”].Footnote 35
Cal. Rules of Court, rule 8.100(a)(2) [“The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed.”].Footnote 36
For example, a failure to describe the judgment or order from which the appeal is taken may deprive the appellate court of jurisdiction to consider an appeal from that judgment or order. (Norman I. Krug Real Estate Investments v. Praszker (1990) 220 Cal.App.3d 35, 47 [“‘Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed'”], citation omitted.Footnote 37
See Code Civ. Proc., §§ 85–86.1.Footnote 38
See Code Civ. Proc., §§ 85–86.1.Footnote 39
Code Civ. Proc., §§ 116.220, 116.221.Footnote 40
Cal. Rules of Court, rules 8.25, subd. (a)(1), 8.100, subd. (a)(1).Footnote 41
Cal. Rules of Court, rule 8.25, subd. (a)(1).Footnote 42
Code Civ. Proc., § 1011; Cal. Rules of Court, rule 8.25, subd. (a)(1).Footnote 43
Code Civ. Proc., § 1013a, subd. (1).Footnote 44
Cal. Rules of Court, rule 8.25, subd. (a)(2).Footnote 45
Code Civ. Proc., § 1013a, subd. (1).Footnote 46
Code Civ. Proc., § 1013, subd. (b).Footnote 47
Code Civ. Proc., § 1013, subd. (a).Footnote 48
Cal. Rules of Court, rule 8.25, subd. (a)(2).Footnote 49
Cal. Rules of Court, rule 8.100, subd. (a)(1).Footnote 50
Cal. Rules of Court, rule 8.100, subd. (b)(1).Footnote 51
Cal. Rules of Court, rule 8.100, subd. (b)(1).Footnote 52
Code Civ. Proc., § 668.5; Cal. Rules of Court, rule 8.104.Footnote 53
Code Civ. Proc., § 668.5; Cal. Rules of Court, rule 8.104.Footnote 54
Cal. Rules of Court, rule 8.104, subd. (d)(1).Footnote 55
Cal. Rules of Court, rule 8.104, subd. (d)(2).Footnote 56
Cal. Rules of Court, rule 8.104, subd. (a) [“[A] notice of appeal must be filed on or before the earliest of: . . . .”].Footnote 57
Cal. Rules of Court, rule 8.104, subd. (a)(1) & (a)(2).Footnote 58
Cal. Rules of Court, rule 8.104, subd. (a)(3).Footnote 59
See, e.g., Cal. Rules of Court, rules 8.108 [extending the time to appeal in certain situations], 8.702, subd. (b)(1) [providing a shorter deadline in CEQA cases].Footnote 60
Cal. Rules of Court, rule 8.104(b); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 668 [“the time for filing an appeal is mandatory and jurisdictional.”].Footnote 61
Code Civ. Proc., § 917.1, subd. (a) [“Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action.”].Footnote 62
Code Civ. Proc., § 916, subd. (a).Footnote 63
Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 485Footnote 64
In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 383 [“The purpose of Code of Civil Procedure section 916 is to protect the appellate court’s jurisdiction by preserving the status quo pending appeal.”].Footnote 65
Code Civ. Proc., §§ 917.1–917.9.Footnote 66
Code Civ. Proc., § 917.1, subd. (a)(1).Footnote 67
Code Civ. Proc., § 916, subd. (a).Footnote 68
Code Civ. Proc., § 916.Footnote 69
Code Civ. Proc., § 917.1, subd. (b); see also Code Civ. Proc., § 995.210, subd. (b) [“If a statute provides for an undertaking, a bond that otherwise satisfies the requirements for the undertaking may be given in its place with the same effect as if an undertaking were given, and references in the statute to the undertaking shall be deemed to be references to the bond.”].Footnote 70
Code Civ. Proc., § 995.140 [defining “bond”].Footnote 71
Code Civ. Proc., § 995.190 [“‘Undertaking’ means a surety, indemnity, fiduciary, or like undertaking executed by the sureties alone.”].Footnote 72
Code Civ. Proc., §§ 917.1, subd. (b), 995.140, 995.190.Footnote 73
Code Civ. Proc., § 917.1, subd. (b).Footnote 74
Code Civ. Proc., § 917.1, subd. (b).Footnote 75
Code Civ. Proc., §§ 917.1, subd. (b), 995.710, subd. (b), 995.730.Footnote 76
Code Civ. Proc., § 917.1, subd. (b) [“The liability on the undertaking may be enforced if the party ordered to pay does not make the payment within 30 days after the filing of the remittitur from the reviewing court.”].Footnote 77
Code Civ. Proc., § 918, subd. (b).Footnote 78
In re Carpenter (1995) 9 Cal.4th 634, 646 [“Appellate jurisdiction is limited to the four corners of the record on appeal”].Footnote 79
Cal. Rules of Court, rule 8.120.Footnote 80
Cal. Rules of Court, rule 8.121.Footnote 81
See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. . . . Because plaintiff has failed to provide such a record, we have no occasion to consider further the merits of his cross-appeal.”].Footnote 82
Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396 [“[W]e are limited by the record and matters which we may judicially notice.”].Footnote 83
Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 91 [“Given this state of the record, we must presume in favor of the judgment . . . .”].Footnote 84
Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.Footnote 85
Cal. Rules of Court, rule 8.120.Footnote 86
Bains v. Department of Industrial Relations (2016) 244 Cal.App.4th 1120, 1132.Footnote 87
Cal. Rules of Court,Footnote 88
rules 8.120, 8.122, 8.124, 8.128, 8.130, 8.134, 8.137.
Cal. Rules of Court, rule 8.121, subd. (a).Footnote 89
See Cal. Rules of Court, rules 8.122 [clerk’s transcript], 8.130 [reporter’s transcript].Footnote 90
Cal. Rules of Court, rule 8.155.Footnote 91
Cal. Rules of Court, Rule 8.124.Footnote 92
Cal. Rules of Court, rule 8.124, subd. (a)(3).Footnote 93
Cal. Rules of Court, rule 8.134.Footnote 94
Cal. Rules of Court, rule 8.134, subd. (a)(1).Footnote 95
Cal. Rules of Court, rule 8.137.Footnote 96
Cal. Rules of Court, rule 8.137, subd. (b)(1).Footnote 97
Cal. Rules of Court, rule 8.137.Footnote 98
Cal. Rules of Court, rule 8.100, subd. (e).Footnote 99
Cal. Rules of Court, rule 8.100, subd. (g).Footnote 100
Cal. Rules of Court, rule 8.208, subd. (a) [“The purpose of this rule is to provide justices of the Courts of Appeal with additional information to help them determine whether to disqualify themselves from a proceeding.”].Footnote 101
Cal. Rules of Court, rule 8.208, subd. (e).Footnote 102
Cal. Rules of Court, rule 8.208, subd. (d)(1) [“[I]f a party files a motion, an application, or an opposition to such motion or application in the Court of Appeal before filing its principal brief, the party must serve and file its certificate at the time it files the first such motion, application, or opposition and must include a copy of this certificate in the party’s principal brief.”].Footnote 103
Cal. Rules of Court, rule 8.212, subd. (a)(1)(A).Footnote 104
Cal. Rules of Court, rule 8.212, subd. (a)(1)(B).Footnote 105
Cal. Rules of Court, rule 8.212, subds. (b)(1), (b)(2).Footnote 106
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 107
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 108
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 109
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 110
Cal. Rules of Court, rule 8.1115, subd. (a) [“[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”].Footnote 111
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.”].Footnote 112
Cal. Rules of Court, rule 8.204, subd. (b)(10).Footnote 113
Cal. Rules of Court, rule 8.204, subd. (b)(10).Footnote 114
Cal. Rules of Court, rule 8.40, subd. (b)(1).Footnote 115
Cal. Rules of Court, rule 8.208, subd. (d)(1) [“[T]he party must serve and file its certificate at the time it files the first such motion, application, or opposition and must include a copy of this certificate in the party’s principal brief.”].Footnote 116
Cal. Rules of Court, rule 8.208, subd. (d)(1) [“If no motion, application, or opposition to such motion or application is filed before the parties file their principal briefs, each party must include its certificate in its principal brief. The certificate must appear after the cover and before the tables.”].Footnote 117
Cal. Rules of Court, rule 8.204, subd. (a)(1)(A).Footnote 118
Cal. Rules of Court, rule 8.204, subd. (a)(1)(A).Footnote 119
Cal. Rules of Court, rule 8.204, subd. (a)(2)(B) [“An appellant’s opening brief must: . . . State that the judgment appealed from is final, or explain why the order appealed from is appealable”].Footnote 120
Cal. Rules of Court, rule 8.204, subd. (a)(2)(A) [“An appellant’s opening brief must: (A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from . . . .”].Footnote 121
Cal. Rules of Court, rule 8.204, subd. (a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].Footnote 122
Cal. Rules of Court, rule 8.204, subd. (a)(2)(C) [“An appellant’s opening brief must: . . . (C) Provide a summary of the significant facts limited to matters in the record.”].Footnote 123
Cal. Rules of Court, rule 8.204, subd. (a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].Footnote 124
Cal. Rules of Court, rule 8.204, subd. (a)(1)(B) [“State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”].Footnote 125
Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].Footnote 126
Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 409–410.Footnote 127
Betz v. Pankow (1993) 16 Cal.App.4th 919, 923 [“We must accept the trial court’s resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence.”].Footnote 128
Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479 [“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”].Footnote 129
Cal. Rules of Court, rule 8.204, subd. (a)(1)(B) [“support each point by argument and, if possible, by citation of authority”].Footnote 130
Cal. Rules of Court, rule 1.200 [“Citations to cases and other authorities in all documents filed in the courts must be in the style established by either the California Style Manual or The Bluebook: A Uniform System of Citation, at the option of the party filing the document. The same style must be used consistently throughout the document.”].Footnote 131
Cal. Rules of Court, rule 8.204, subd. (b)(9) [“The brief need not be signed.”].Footnote 132
Cal. Rules of Court, rule 8.204, subd. (c)(1) [“Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief.”].Footnote 133
Cal. Rules of Court, rule 8.204, subd. (c)(1).Footnote 134
Cal. Rules of Court, rule 8.25, subd. (a) [“The party must attach to the document presented for filing a proof of service showing service on each person or entity required to be served under (1). The proof must name each party represented by each attorney served.”].Footnote 135
Cal. Rules of Court, rule 8.25, subd. (a)(1) [“Before filing any document, a party must serve, by any method permitted by the Code of Civil Procedure, one copy of the document on the attorney for each party separately represented, on each unrepresented party, and on any other person or entity when required by statute or rule.”].Footnote 136
Cal. Rules of Court, rule 8.212, subd. (c)(1) [“One copy of each brief must be served on the superior court clerk for delivery to the trial judge.”].Footnote 137
See, e.g., Cal. Rules of Court, rule 8.212, subd. (c)(3) [“One copy of each brief must be served on a public officer or agency when required by rule 8.29.”].Footnote 138
Cal. Rules of Court,Footnote 139
rule 8.124, subd. (d)(2) [“In addition to the information required on the cover of a brief by rule 8.204(b)(10), 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.'”].
Cal. Rules of Court, rule 8.40, subd. (b)(1).Footnote 140
Cal. Rules of Court, rule 8.204, subd. (c)(1) [“A brief produced on a computer must not exceed 14,000 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief.”].Footnote 141
Cal. Rules of Court, rule 8.204, subd. (c)(2) [“A brief produced on a typewriter must not exceed 50 pages.”].Footnote 142
Cal. Rules of Court, rule 8.204, subd. (c)(5)Footnote 143
[“On application, the presiding justice may permit a longer brief for good cause.”].
Cal. Rules of Court, rule 8.204, subd. (b)(1) [“A brief may be reproduced by any process that produces a clear, black image of letter quality. All documents filed must have a page size of 81/2 by 11 inches. If filed in paper form, the paper must be white or unbleached and of at least 20-pound weight.”].Footnote 144
Cal. Rules of Court, rule 8.204, subds. (b)(4) [“Except as provided in (11), the font size, including footnotes, must not be smaller than 13-point, and both sides of the paper may be used.”], (b)(5) [“The lines of text must be unnumbered and at least one-and-a-half-spaced.”].Footnote 145
Cal. Rules of Court, rule 8.204, subds. (b)(5) [“Headings and footnotes may be single-spaced. Quotations may be block-indented and single-spaced. Single-spaced means six lines to a vertical inch.”].Footnote 146
Cal. Rules of Court, rule 8.204, subds. (b)(6) [“The margins must be at least 11/2 inches on the left and right and 1 inch on the top and bottom.”].Footnote 147
Cal. Rules of Court, rule 8.204, subds. (b)(7) [“The pages must be consecutively numbered. The page numbering must begin with the cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the cover page.”].Footnote 148
See Cal. Rules of Court, rules 8.70–8.79. Information about the process of e-filing can be found on the website of the court of appeal for the district in which the appeal was filed.Footnote 149
Cal. Rules of Court, rule 8.44, subd. (b).Footnote 150
Cal. Rules of Court, rule 8.44, subd. (b).Footnote 151
Cal. Rules of Court, rule 8.200, subd. (a)(2) [“Each respondent must serve and file a respondent’s brief”].Footnote 152
Cal. Rules of Court, rule 8.200, subd. (a)(5) [“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.”].Footnote 153
Cal. Rules of Court, rule 8.212,Footnote 154
Cal. Rules of Court, rule 8.40, subd. (b).Footnote 155
See Cal. Rules of Court, rule 8.204, subd. (a)(2) [applying only to opening briefs].Footnote 156
Cal. Rules of Court, rule 8.25, subd. (a)(1).Footnote 157
Cal. Rules of Court, rule 8.212, subd. (c)(1) [“One copy of each brief must be served on the superior court clerk for delivery to the trial judge.”].Footnote 158
Cal. Rules of Court, rule 8.200, subd. (a)(3) [“Each appellant may serve and file a reply brief.”].Footnote 159
Cal. Rules of Court, rule 8.40.Footnote 160
Cal. Rules of Court, rule 8.204, subd. (a)(1).Footnote 161
Cal. Rules of Court, rule 8.204, subd. (a)(1).Footnote 162
Cal. Rules of Court, rule 8.204, subd. (c)(1).Footnote 163
Cal. Rules of Court, rule 8.25.Footnote 164
American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].Footnote 165
Cal. Rules of Court, rule 8.40, subd. (b).Footnote 166
Cal. Rules of Court, rule 8.204, subds. (b), (c).Footnote 167
Cal. Rules of Court, rules 8.25, subd. (a)(1), 8.212, subd. (c)(1).Footnote 168
Cal. Rules of Court, rule 8.212, subd. (a).Footnote 169
Cal. Rules of Court, rule 8.244, subd. (a) [“If a civil case settles after a notice of appeal has been filed either as a whole or as to any party, the appellant who has settled must immediately serve and file a notice of settlement in the Court of Appeal. If the parties have designated a clerk’s or a reporter’s transcript and the record has not been filed in the Court of Appeal, the appellant must also immediately serve a copy of the notice on the superior court clerk.”].Footnote 170
Cal. Rules of Court, rule 8.244.Footnote 171
Cal. Rules of Court, rule 8.244.Footnote 172
Cal. Rules of Court, rule 8.244, subd. (a)(4) [“If the appellant does not file an abandonment, a request to dismiss, or a letter stating good cause why the appeal should not be dismissed within the time period specified under (3), the court may dismiss the appeal as to that appellant and order each side to bear its own costs on appeal.”].Footnote 173
See Cal. Rules of Court, rule 8.248, subd. (a)(2).Footnote 174
Cal. Rules of Court, rule 8.248, subd. (d) [“The time to file a party’s brief under rule 8.212(a) is tolled from the date the Court of Appeal sends notice of the conference until the date it sends notice that the conference is concluded.”].Footnote 175
Cal. Const. art. VI, § 3 [“The Legislature shall divide the State into districts each containing a court of appeal with one or more divisions. Each division consists of a presiding justice and 2 or more associate justices. It has the power of a court of appeal and shall conduct itself as a 3-judge court. Concurrence of 2 judges present at the argument is necessary for a judgment.”].Footnote 176
Moles v. Regents of University of California (1982) 32 Cal.3d 867, 872 [“the right to oral argument in civil — as well as criminal — cases is also found in the state Constitution and in prior case law.”].Footnote 177
Cal. Rules of Court, rule 8.256, subd. (c)(2) [“Each side is allowed 30 minutes for argument. If multiple parties are represented by separate counsel, or if an amicus curiae-on written request-is granted permission to argue, the court may apportion or expand the time.”].Footnote 178
Cal. Rules of Court, rule 8.268, subd. (a) [“On petition of a party or on its own motion, a reviewing court may order rehearing of any decision that is not final in that court on filing.”].Footnote 179
Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 121 [granting rehearing to consider a federal decision that was not published until approximately the date the court’s opinion was filed].Footnote 180
Gov. Code, § 68081.Footnote 181
See People v. Alice (2007) 41 Cal.4th 668, 676, fn. 1 [“Courts of Appeal tend to err on the side of allowing more supplemental briefing rather than less, when a question arises as to whether an issue has been proposed and briefed by the parties.”].Footnote 182
Cal. Rules of Court, rule 8.500, subd. (c) [“As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.”].Footnote 183
Cal. Rules of Court, rule 8.268, subd. (a)(2).Footnote 184
Cal. Rules of Court, rule 8.264, subd. (b)(1).Footnote 185
Cal. Rules of Court, rule 8.264, subd. (b)(2).Footnote 186
Cal. Rules of Court, rule 8.268, subd. (c) [“The time for granting or denying a petition for rehearing in the Court of Appeal may not be extended. If the court does not rule on the petition before the decision is final, the petition is deemed denied.”].Footnote 187
Cal. Rules of Court, rule 8.71, subd. (a) [“Except as otherwise provided by these rules, the local rules of the reviewing court, or court order, all parties are required to file all documents electronically in the reviewing court.”].Footnote 188
Cal. Rules of Court, rule 8.71, subd. (b)(1) [“Self-represented parties are exempt from the requirement to file documents electronically.”].Footnote 189
Gov. Code, § 68927, subd. (a) [“The fee for filing a petition for review in a civil case in the Supreme Court after a decision in a court of appeal is five hundred forty dollars ($540).”]. Some parties may be eligible for a waiver of this fee by following rule 3.50 through 3.58 of the California Rules of Court.Footnote 190
Cal. Rules of Court, rule 8.44, subd. (a)(1).Footnote 191
Cal. Rules of Court, rule 8.25, subd. (a)(1).Footnote 192
Cal. Rules of Court, rule 8.500, subd. (f)(1) [“The petition must also be served on the superior court clerk and the Court of Appeal clerk.”].Footnote 193
Cal. Rules of Court, rule 8.500, subd. (f)(1).Footnote 194
Cal. Rules of Court, rule 8.500, subd. (e)(1) [“A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court.”].Footnote 195
Cal. Rules of Court, rule 8.264, subd. (b)(1).Footnote 196
Cal. Rules of Court, rule 8.500, subd. (e)(1).Footnote 197
Cal. Rules of Court, rule 8.500, subd. (e)(1) [“For purposes of this rule, the date of finality is not extended if it falls on a day on which the clerk’s office is closed.”].Footnote 198
Cal. Rules of Court, rule 8.25, subd. (b)(1).Footnote 199
Cal. Rules of Court, rule 8.25, subd. (b)(3).Footnote 200
Cal. Rules of Court, rule 8.25, subd. (b)(2).Footnote 201
Cal. Rules of Court, rule 8.504, subd. (b).Footnote 202
Cal. Rules of Court, rule 8.40, subd. (b).Footnote 203
Cal. Rules of Court, rule 8.504, subd. (d)(1).Footnote 204
Cal. Rules of Court, rule 8.500, subd. (c)(1).Footnote 205