The Basics of California State Appellate Procedure
September 28, 2023
Let’s say you just lost a civil lawsuit in California Superior Court (one of California’s 58 trial courts), and you think the court got it wrong. You may want to challenge that loss by appealing to the California Court of Appeal. There, a panel of three judges will consider the trial court’s ruling and decide whether any legal errors require correction.
But while filing a compelling brief matters, it won’t be enough to simply point out the mistakes made by the trial court to win. There are several other important procedural steps that a party must take before the Court of Appeal will even consider the merits of your case. And the failure to do so could have dramatic consequences, including dismissal of the appeal. Thus, it’s just as important that a party clear all these procedural hurdles to have a chance of winning on the merits.
Let’s consider those steps.
Notice of Appeal
To initiate an appeal, the appellant must file what is called a Notice of Appeal. This is a short, straightforward document, that provides basic information about the case and what type of appeal will be at issue. An example can be found on the California Court’s website here.
While it may be a simple document to prepare, the notice of appeal is a critical one and comes with strict deadlines. In most cases, the appellant must file a notice of appeal within 60 days of service of the notice of entry of judgment. See Cal. Rule of Court 8.104(a)(1). (Some other rules of court and statutes, however, may provide for a different period depending on the type of case at issue.)
If no “Notice of Entry of Judgment” has been served, then the notice of appeal must be filed within 180 days of entry of the judgment. See Cal. Rule of Court 8.104(a)(1)(C).
These deadlines are strict. No extensions will be granted—even if the parties agree. The rules explicitly state that “no court may extend the time to file a notice of appeal.” See Cal. Rule of Court 8.104(b). The rules also say that “[i]f a notice of appeal is filed late, the reviewing court must dismiss the appeal.” Id.
There are some minor exceptions when a party files: (i) a motion for new trial; (ii) a motion to vacate judgment, (iii) a motion for judgment notwithstanding the verdict; or (iv) a motion to reconsider appealable order. See Cal. Rule of Court 8.108(b)-(e). Or, in the case of a cross-appeal, “the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk serves notification of the first appeal.” See Cal. Rule of Court 8.108(g).
But, in most cases, if an appellant fails to file its notice of appeal on time, the appeal is over. Seriously, do not miss this deadline!
When an appellant files a notice of appeal, the appellant must pay a $775 filing fee, along with a $100 deposit with the Superior Court clerk for transcript expenses, unless they are waived. See Cal. Rule of Court 8.100(b).
After an appeal has been initiated by filing the notice of appeal, the next step is to “designate the record” for the appellate court to consider in ruling on the merits of your appeal. See Cal. Rule of Court 8.120.
The record is the collection of materials considered by the trial court that the appellant believes is important for the Court of Appeal to have to consider your appeal. These materials can include rulings, orders, evidence, testimony, hearing transcripts, briefing by the parties, and more.
The appellant designates the record by listing the items in a Notice Designating Record on Appeal form. An example can be found on the California Court’s website here.
The Notice Designating Record on Appeal also comes with a deadline. This notice must be served and filed with the Superior Court within 10 days of the filing of the Notice of Appeal. See Cal. Rule of Court 8.121(a). Failure to properly designate the record can be fatal to an appeal.
Finally, it’s time to get to the main event: briefing. This is where the parties lay out the factual discussion and legal argument for the Court of Appeal judges to consider in deciding the matter. But, like other aspects of the appeal, the parties’ briefs are subject to several requirements as well.
There are specific rules about the contents and format of the briefs. For content, each brief must:
- “Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited;”
- “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; and”
- “Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”
Cal. Rule of Court 8.204(a)(1).
The appellant’s opening brief must also:
- “State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from;”
- “State that the judgment appealed from is final, or explain why the order appealed from is appealable; and”
- “Provide a summary of the significant facts limited to matters in the record.”
Cal. Rule of Court 8.204(a)(2).
For format, the brief must adhere to many rules, a few of which we’ll highlight:
- Be printed on paper 8.5 by 11 inches.
- Font style must be roman and font size must not be smaller than 13-point (including footnotes).
- The lines of text must be unnumbered and at least one-and-a-half-spaced.
- The margins must be at least 11/2 inches on the left and right and 1 inch on the top and bottom.
Cal. Rule of Court 8.204(b).
Parties are also limited with respect to the length of their briefing. A party’s brief cannot exceed 14,000 words (or 50 pages if anyone is using a typewriter). Cal. Rule of Court 8.204(c)(1).
After the parties have submitted the brief, the Court of Appeal will schedule oral argument. Each side is generally given 30 minutes in total to make its arguments, with the appellant having a chance to both open the argument and then conclude with a short rebuttal. The Court of Appeal will provide the parties with specific instructions regarding the timing of oral argument.
After oral argument, the case is considered “submitted,” and the parties then wait for the Court of Appeal to issue its decision.
Petition for rehearing / petition for review
After the Court of Appeal issues its decision, a party may want to challenge that decision.
One way to do that is through a petition for rehearing, which in essence asks the court to reconsider aspects of its decision. “A petition for rehearing is the correct remedy to address material inaccuracies or omissions in a disposition.” Ducoing Management, Inc. v. Superior Court, 183 Cal. Rptr. 3d 548 (2015). As with the appeal, there are strict deadlines and requirements to follow. The petition for rehearing must be filed within 15 days of the filing of the decision. Cal. Rule of Court 8.268(b). The petition for rehearing cannot exceed 7,000 words. Cal. Rule of Court 8.204(c)(5). A party opposed to a petition for rehearing is only entitled to file an answer if the Court of Appeal requests that one be filed. Cal. Rule of Court 8.268(b)(2).
A second way to seek review of the Court of Appeal decision is by the Supreme Court of California. This is done through a petition for review. Cal. Rule of Court 8.500. But keep in mind that the Supreme Court of California only reviews about 3% of the cases filed there. The Court may review a decision:
(1) When necessary to secure uniformity of decision or to settle an important question of law;
(2) When the Court of Appeal lacked jurisdiction;
(3) When the Court of Appeal decision lacked the concurrence of sufficient qualified justices; or
(4) For the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.
Cal. Rule of Court 8.500(b).
A petition for review must be filed within 10 days after the Court of Appeal’s decision is final. Cal. Rule of Court 8.500(e). An answer may be filed within 20 days of the filing of the petition for review, and a reply may be filed within 10 days of the answer. Cal. Rule of Court 8.500(e).
[Note: These rules apply to appeals in unlimited civil cases before the California Court of Appeal involving just one appellant and one respondent. Appeals involving multiple parties, cross-appeals, limited civil or criminal cases, or those before the Supreme Court of California are governed by somewhat different rules.]
Dated: September 28, 2023