Lessons From 2012 About California Appellate Procedure

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Appellate courts invariably face lawyers who fail to follow the rules that govern appeals. Learned Hand famously threw a 150-page brief over the bench and onto counsel's table after exclaiming that he would not read it because it was too long. Supreme Court Justice John Marshall Harlan had penned the brief several years before his appointment to the Court. Even the most celebrated attorneys sometimes fail to follow appellate procedural rules, a deviation from which can signal the end of an appeal. The California Court of Appeal issued a handful of decisions at the end of 2012 that provide helpful reminders about what is important when filing an appeal.

Briefing: Do Your Own Work 
The Court of Appeal is not obligated to research the legal arguments that parties advance on appeal, nor is it required to sift through the record to uncover evidence to support a party's factual contentions. In Piechuta v. Hernandez, No. A132220 (Cal. Ct. App. Dec. 17, 2012 nonpub. opn.), the court affirmed terminating sanctions and a default judgment against defendant and appellant who had grown trees in her yard that obstructed her neighbor's ocean view. The court came down hard on appellant because her brief failed to cite portions of the record or pertinent legal authority to support each assertion. The court warned: "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. We can simply deem the contention to lack foundation and . . . be forfeited."

The court reached the same conclusion in another case one day after deciding Piechuta. In Eannarino v. Martin, No. D060063 (Cal. Ct. App. Dec. 18, 2012 nonpub. opn.), defendant and appellant challenged the trial court's grant of a petition for a restraining order against her. Appellant's opening brief was devoid of citations to legal authority or the record. The Court of Appeal held that any unsupported contention was deemed waived.

Both decisions should cause California appellate attorneys to proceed with caution. First, the Court of Appeal was tough on both appellants despite their pro per status. It follows that counsels' failure to cite factual and legal authority would be met with even less sympathy. Second, the court treated such procedural deficiencies as a litmus test for whether the court needed to substantively evaluate the issues presented on appeal. In other words, counsel must adhere to the procedural rules that govern appeals if they expect their legal theories to be adjudicated on the merits.

Mootness: Cover All Your Bases 
Similarly, in Labtis v. CitiMortgage, No. H037248 (Cal. Ct. App. Dec. 17, 2012 nonpub. opn.), the Court of Appeal dismissed an appeal without reaching the merits. Appellant, past due on her mortgage payments to the tune of nearly $20,000, obtained a temporary restraining order staying the sale of her home, and an order to show cause why a preliminary injunction should not issue. In the action that followed, Labtis sought to prevent foreclosure of her home. But the trial court denied her request for an injunction, sustained CitiMortgage's demurrer to the complaint, and entered a judgment of dismissal.

The Court of Appeal reasoned that the appeal was moot because the trial court sustained the demurrer without leave to amend, and a preliminary injunction cannot issue when a complaint fails to state a cause of action. Nevertheless, appellant could have invoked the court's inherent power to retain the otherwise moot appeal by briefing arguments designed to trigger the court's discretion, including: (1) the issue underpinning the case is one of broad public importance, (2) there is a likelihood that the controversy will recur, or (3) a material question remains for the court to adjudicate. Unfortunately, absent effective briefing (as was the case in Labtis), the Court of Appeal was left with no option but to dismiss.

Timeliness: Watch the Clock 
The notice of appeal is the document that triggers appellate jurisdiction. In California, a notice of appeal must be filed no more than sixty days from service of notice of entry of judgment (Cal. Rules of Court, rule 8.104(a)) or no more than thirty days from service of an order denying post-trial motions (rule 8.108(b)). In Steele v. West Coast Metals, No. A136768 (Cal. Ct. App. Dec. 17, 2012 nonpub. opn.), defendant filed a notice of appeal 55 days after notice of entry of an amended judgment. Although a party generally has sixty days to file the notice of appeal from service of entry of judgment, appellant learned a hard lesson in Steele.

The appellate clock does not stop ticking unless the amended judgment involves a substantial change in the parties' rights such that a party could not have raised the appeal earlier. (See, e.g., Dakota Payphone, LLC v. Alcaraz (2011 nonpub. opn.) 192 Cal.App.4th 493, 504 (even a four-million dollar reduction in a judgment does not constitute a substantial modification).) In other words, if a party can obtain its desired relief from judgment pre-amendment, that party must not wait for an amendment before filing a notice of appeal because the clock will run.

Ultimately, an appeal may very well survive the foregoing errors. On the other hand, counsels' failure to comport appeals to procedural rules can result in anything from a judicial jab in an opinion to an outright dismissal. Fortunately, appellate attorneys can ensure that their appeals are evaluated on the merits by merely paying attention to the rules.