“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.”
Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial?
Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV, think protective cross-appeal—because if you lose the JNOV, then you’re back to challenging that nasty verdict again.
Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023).
Here are the tips:
Rule Zero: Make the Record
#1 Make sure your theories of the case are captured in your pleadings
#2 Was key evidence excluded? Preserve the issue by making a proffer.
#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.
#4 Object to Jury Instructions
#5 Review the Verdict for Inconsistences
#6 Request and Object to the Statement of Decision
#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!
#8 Calculate Appellate Deadlines Correctly
#9 Avoid Common Appellate Briefing Mistakes
#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)
Evergreen Tip: Get a Court Reporter!
You may download a PDF of my slideshow by clicking through to the full article.
Thank you to my colleagues who sent me their top tips!
If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.
On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.
And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.
Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions.
Well, here is yet another exception: We already knew that, when a motion for new trial is filed, that extends the time to appeal to 30 days after the motion is denied. And we already knew that the trial court’s deadline to deny the motion is 75 days after service of the notice of entry of judgment. That’s all laid out clearly in California Rules of Court 8.108 and Code of Civil Procedure section 660, and these rules are treated as jurisdictional. But if a party files a motion to disqualify the trial judge before the judge denies the motion for new trial, that tolls the 75-day period.
That is what the Fourth District Court of Appeal held in Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). After the trial court nonsuited the plaintiff’s case, the plaintiff moved for a new trial. But then three weeks later—before the court had had a chance to rule on the new-trial motion—the plaintiff moved to disqualify the trial judge.
Under the normal rule, the motion for new trial would have been deemed denied automatically after the 75th day. But at that time, the disqualification motion was still pending. So even though the plaintiff filed her appeal within 30 days after the exonerated trial judge denied the new-trial motion, the defendant argued this was too late.
Held: The appeal was not untimely. The DQ motion tolled the judge’s time to act.
So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal.
The first lesson is: Your new trial motion has to be “valid.” Here, failing to file supporting papers arguably made the motion invalid. (Even though the text of the rule doesn’t really support this read, who is going to argue that you shouldn’t have to support your motion?)
The second lesson is: If a challenge to timeliness is raised, be sure to argue your right to an extension under California Rules of Court rule 8.108. The appellant here failed to raise it in her brief, so it was deemed forfeited. (But in this, the court was wrong: you cannot forfeit jurisdictional arguments.)
The third lesson is: If the trial court takes your motion off calendar, you should probably assume it is denied. (This too, seems wrong to me. The rule 8.108 extension begins running from service of the order “denying” the motion, not from when you should “assume” it’s denied.)
You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.
Fortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. And that is the case even if the trial court denies the section 473 motion for not being filed sooner.
Comment: Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. Win-win.
But the same is not necessarily true with all posttrial motions. On JNOV motions, there is a split of authority. And motions to vacate cannot be heard when an appeal is pending.
So it is very important to carefully and timely prepare and file posttrial motions if you are relying on them to extend the time to appeal.
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.
In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.
Some of the cases discussed involving "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.
Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.
On the latest episode of the California Appellate Law Podcast (available Tuesday, Mar. 30 at www.CALPodcast.com), co-hosts Jeff Lewis and I discuss with guest Cory Webster the importance of Federal Rule of Civil Procedure 50, governing motions for judgment as a matter of law, which must be made both before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.
The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown appealed after her civil rights claim failed on grounds of qualified immunity. On appeal, she ran into several waiver and forfeiture issues.
While Brown was pro se, trial attorneys' job of persuading juries often leaves good appellate arguments underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.
Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the […]