What to do After Receiving a Civil Notice of Appeal

On By krobinson

What to do After Receiving a Civil Notice of Appeal

By Megan McDonald
Lewis Brisbois

Imagine this: You are a civil attorney, and your client finally receives a favorable ruling on a hard-fought motion in state court. You excitedly call your client and celebrate with your colleagues. You relax your shoulders knowing all is well, at least for the day.

The weeks pass. Your feeling of victory has long been forgotten. You receive a new email, simple in form, but it fills you with dread. It’s a notice of appeal. The opposing party has appealed the court’s order favoring your client. Instantly, you start plotting the course for what might come next. You quickly realize you don’t actually know what should come next.

Don’t panic—there are two jurisdictional items you can examine immediately: appealability and timeliness. The appellant’s error in either category could result in the appeal’s dismissal.

Preliminary question: What is being appealed?

Before you can answer the jurisdictional questions, you must first ascertain exactly what is being appealed. Only a thing—a judgment or order granting or denying something—may be appealed.[1] In a notice of appeal, the appellant must identify both the date of the judgment or order and what category the judgment or order falls under.[2] You must use this notice to understand exactly what thing is being appealed to determine whether the appellate court obtained jurisdiction over the matter.

Is the judgment or order appealable?

Next, analyze whether the judgment or order is appealable. An appellate court cannot obtain jurisdiction over a direct appeal if the thing appealed from is not appealable.[3] Look first to Code of Civil Procedure, section 904.1 for appealability. Essentially, an appealable order or judgment is one that finally disposes of all claims between the parties (i.e., the “one final judgment” rule), or one that is specifically authorized by law.[4]

Whether a judgment or order is “final” turns on its legal effect. Generally, the judgment or order is final where it “terminates the litigation between the parties on the merits . . . and leaves nothing to be done but to enforce” the determination.[5] Accordingly, the appellate court may consider a seemingly interlocutory order or judgment to be final, or a judgment labeled “final” to be interlocutory.[6]

Some interlocutory orders are appealable by statute or common law. Code of Civil Procedure section 904.1, subdivision (a), provides many of these orders, such as an order granting (but not denying) a new trial, or an order either granting or denying certain motions to strike. A common law example includes an order granting or denying a motion to disqualify counsel.[7]

Like anything in the law, there are nuances and exceptions. For instance, some interlocutory orders may be appealable without statutory authority if they are collateral and meet certain criteria.[8] Moreover, many orders, such as an order granting or denying a motion for attorney’s fees, must be appealed separately if decided after entry of judgment.[9] When you receive a notice of appeal, do yourself a favor and verify that the judgment or order appealed from is truly appealable.

Is the notice of appeal timely?

Additionally, you should determine whether the appellant timely appealed.[10] California Rules of Court, rule 8.104, subdivision (a)(1), denotes the jurisdictionally required deadline in which one may bring a notice of appeal. These deadlines depend on how the party filing the notice of appeal received notice of the judgment or order.[11] However, method of service does not extend the deadlines.[12] Typically, the deadline may be extended only as prescribed by California Rules of Court, rule 8.108.[13]

Nonappealable decisions may receive review with an appeal of the final judgment or order. However, the time to file any separately appealable judgment or order, such as an order granting a motion to quash service of summons and complaint, will start to run according to rule 8.104. This means the time to appeal from such order may run before the final judgment or order is entered.[1]

Next steps

The appellate court must dismiss an appeal that is either taken from a nonappealable order or is untimely because the appellate court would not have jurisdiction over the matter. You may bring a motion to dismiss with the appellate court to alert it of such jurisdictional issues. The motion to dismiss should comply with California Rules of Court, rules 8.54 and 8.57.

If the appeal is both timely and taken from an appealable order or judgment, you’ll next want to determine whether you want to cross-appeal, or wait to examine the appellant’s designation of the record on appeal.

[1] Shout-out to certified appellate specialist Jeff Miller of Lewis Brisbois Bisgaard & Smith, LLP. Trial attorneys, he explains, often want to appeal a denial, not an order denying something. This may seem like semantics, but you need to focus on the actual thing being appealed to examine its procedural effect.

[2] See Judicial Council Form APP-002.

[3] Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696. Note this rule does not apply to writ petitions, which request the appellate court to provide extraordinary relief and review a nonappealable order or judgment.

[4] Id. at pp. 696–698; Code Civ. Proc., § 904.1, subd. (a).

[5] Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 204.

[6] See, e.g., Eldridge v. Burns (1978) 76 Cal.App.3d 396, 404–405; Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101–1102; Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240, 244.

[7] Machado v. Super. Ct. (2007) 148 Cal.App.4th 875, 882.

[8] See Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297–298.

[9] Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007–1008.

[10] Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.

[11] Cal. Rules of Court, rule 8.104, subd. (a)(1). Note that shorter deadlines based on a clerk’s or party’s service of a document titled “Notice of Entry” of judgment or order, or containing a file-endorsed copy of such, are strict requirements to trigger the shorter deadline. See Sunset Millennium Assocs., LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 260; Bi-Coastal Payroll Services, Inc. v. California Ins. Guarantee Assn. (2009) 174 Cal.App.4th 579, 586.

[12] Cal Rules of Court, rule 8.104, subd. (b); InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134.

[13] Cal. Rules of Court, rule 8.60, subd. (d).

[14] See, e.g., Strathvale Holdings v. E.B.H. (2006) 126 Cal.App.4th 1241, 1248.