Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Appeals Dismissed

Appellate Court Acknowledges "The Rules Governing the Timeliness of an Appeal Are Complex"​; Appeal Dismissed

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. There are endless confounders in deciding when and what to appeal. A few of them arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

1. No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.

2. Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The Upshot: Originally, the plaintiff had a very sound appellate challenge. But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

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Strategic Dismissals to Expedite Appeal Are No Longer Appealable, Ninth Circuit Holds

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders to expedite an appeal in California state court.

But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services , No. 19-55747 (9th Cir. Dec. 29, 2020) warns that federal Courts of Appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction.

If you are developing a strategy after a devastating order before a final judgment has been entered, that is an excellent time to consult appellate counsel.

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