Appeals

Parker v. Willmark Communities, Inc., No. D069466, 2017 WL 4707398 (Cal. Ct. App. Oct. 20, 2017) (prevailing on appeal on behalf of putative class of apartment complex tenants; dismissing apartment owner’s appeal of interlocutory order enjoining improper settlement communications with putative class members and holding that such an order is non-appealable).

Faith No More v. Manifesto Records, Inc., No. B271323, 2017 WL 1231387 (Cal. Ct. App. Apr. 4, 2017) (prevailing on appeal in music industry intentional interference with contractual relations matter; affirming denial of record company’s anti-SLAPP motion and finding that band’s claims were not preempted by the Copyright Act and that the band satisfied its burden to show a probability of prevailing).

Canatella v. Van de Kamp, 486 F.3d 1128 (9th Cir. 2007) (affirming district court’s dismissal of appellate attorney’s § 1983 claim against the California State Bar, its general counsel and its former president on grounds it was time barred).

Mendler v. Winterland Production, LTD, 207 F.3d 1119 (9th Cir. 2000) (prevailing on appeal in copyright infringement matter; reversing and remanding copyright infringement judgment in favor of defendant, finding infringement and remanding for determination of damages in client’s favor).

Carter v. Superior Court, 218 Cal.App.3d 994 (1990) (issuing writ of mandamus that litigants who were precluded from seeking information or documents under one type of discovery method because of a failure to timely move to compel compliance were nonetheless entitled to obtain the same information or documents under a different discovery method).

In the litigation context, an appeal is essentially when a party to a lawsuit asks a court with authority over the court which made a decision that party disagrees with to review and potentially reverse the first court’s decision. Appellate courts typically involve multiple judges or justices who have to reach a majority decision on the subject. If you’re a sports fan, think of an appeal as a challenge to the call on the field. The trial court, like the referee, makes the initial call and the appeals court, like the replay booth, can decide whether that call was right or wrong. Instead of being technology-assisted, appellate courts are assisted by appellate attorneys, like those at Phillips, Erlewine, Given and Carlin LLP who present the record and applicable law as clearly and persuasively as possible.

California state court appeals and federal court appeals are subject to different procedural and substantive rules and laws. The appeals take place in different courts, with different judges, reviewing different laws, and applying different standards of review to the laws and facts at issue. Litigants generally do not have a choice of appellate forum: with rare exceptions, whichever trial court forum the decision on appeal is from it will remain in that system on appeal. While the rules and standards may differ, the advocacy skills remain the same. In both forums, you want attorneys with appellate experience, strong legal research and writing skills for the detailed briefing both forums require, and persuasive oral advocacy skills for oral argument. The attorneys at Phillips, Erlewine, Given & Carlin LLP have successfully served as appellate counsel in federal and California appellate forums.

In California, not all trial court decisions are automatically appealable. The appealability of a decision depends on several factors. Here are some guiding principles:

Final Judgment Rule: Generally, only final judgments are appealable. A final judgment is one that terminates the litigation between the parties. It disposes of all the issues in the case, leaving nothing for the trial court to do except execute the judgment.

Interlocutory Appeals: Exceptions to the final judgment rule allow parties to appeal some interlocutory (non-final) orders. This often, but not always, requires permission from the appellate court. Interlocutory orders that may be appealable include those granting or denying preliminary injunctions or orders on jurisdictional issues.

Writs of Mandate or Prohibition: If a trial court makes an order that is not directly appealable, you may seek extraordinary relief by filing a writ petition with the appellate court. This is an exceptional remedy, rarely granted, but may be worth pursuing if there is no other way for effective review to occur and the party seeking the writ will suffer irreparable injury absent review.

Certification of Issues: In limited circumstances, a trial court or appellate court may certify an order for immediate appeal if there is a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of the litigation.

To determine whether a decision is appealable in your specific case, consult with an experienced appellate attorney.

Like in California courts, in the federal court system, the appealability of a decision depends on many factors. Here are some general principles:

Final Judgment Rule: Generally, like in state court, only final judgments are appealable. A final judgment is one that ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. Interlocutory (non-final) orders are typically not immediately appealable.

Interlocutory Appeals: Like in California, some interlocutory orders are appealable in federal court, if specific statutory or rule-based criteria are met. For example, 28 U.S.C. § 1292 provides for appeals from certain interlocutory orders, such as those granting or denying injunctions or determining certain controlling questions of law.

Collateral Orders: The collateral order doctrine allows appeals from a small class of orders that are separate from the merits of the case, conclusive, and effectively unreviewable on appeal from a final judgment.

Certification by the District Court: In some cases, the district court may certify an order for immediate appeal if it involves a controlling question of law for which there is substantial ground for a difference of opinion, and an immediate appeal may materially advance the ultimate termination of the litigation.

Certification by the Circuit Court: In some cases, a Circuit Court of Appeals (like the Ninth Circuit here on the West Coast) is uncertain how a state law issue should be decided they may certify the issue of law for a decision on that discrete issue to the supreme court of the state where the law is at issue. While this is relatively rare, our firm has experience handling these types of certifications from the Ninth Circuit to the California Supreme Court.

Writs of Mandamus: Extraordinary writs, such as mandamus, may be sought from the appellate court if a party believes that the district court has committed a clear error or usurped its authority.

Statutory Authorization: Some statutes provide for direct appeals from specific types of decisions or orders. For instance, certain decisions in bankruptcy cases, patent cases, and civil rights cases may have specific statutory provisions allowing appeals.

If you have questions about the appealability of a decision, you should contact an experienced appellate attorney.

In California, the general deadline for filing a notice of appeal is 60 days after the order is entered. In federal court that window is half as long, 30 days from entry of judgment. If you are on the losing end of a wrongly-decided trial court order, it’s crucial that you quickly evaluate your appellate rights with an experienced appellate attorney. The notice of appeal itself is a relatively simple form that kicks off the appellate process where more detailed briefs are filed and oral argument is generally held as the final step before an opinion is rendered.

Generally, there are two layers of review in each forum, save for exceptional circumstances.

In California, appeals (as opposed to writ petitions) from the Superior Courts of California (the general trial court) to the California Courts of Appeal (the first-level appellate court) are mandatory, subject to the rules discussed above, while review by the Supreme Court of California is generally discretionary, meaning that Court does not have to review the decision unless it wants to. To seek review by the Supreme Court of California, a party must file a petition for review within 10 days after the Court of Appeal decision becomes final. On a petition, the Supreme Court of the United States may decide to review a decision of the Supreme Court of California or lower court, but this is exceptionally rare.

In federal court, appeals from the United States District Courts (the general trial court) to the United States Court of Appeals for a given circuit are mandatory, while review by the Supreme Court of the United States of a United States Court of Appeals decision is discretionary and exceedingly more rare than review by the Supreme Court of California of a decision of the state’s intermediary appellate tribunals.

Appellate courts in California generally review questions of law de novo, meaning they review legal issues without deference to the lower court's decision. However, findings of fact are typically reviewed for substantial evidence or abuse of discretion, giving deference to the trial court's factual determinations. Some decisions a trial court makes, whether grounded in law or fact, are discretionary, and those decisions are reviewed from an abuse of discretion standard. This means that it is generally easier to win an appeal when the issue is that the trial court made a mistake of law, rather than if the Court’s error was factual or a matter of discretion.

The three primary standards of review in federal appeals are:

De Novo Review: Like in state court, this standard is applied to questions of law. When a court reviews a case de novo, it means that the appellate court gives no deference to the legal conclusions reached by the trial court. Instead, the appellate court independently reviews and decides the legal issues.

Clear Error Review: This standard is generally applied to findings of fact. The appellate court will defer to the trial court's factual findings unless there is a clear error. The mistake must be obvious and significant.

Abuse of Discretion: This standard applies to discretionary decisions made by the trial court, such as decisions related to discovery or evidentiary rulings. An abuse of discretion occurs when the trial court's decision is arbitrary, capricious, or without a reasonable basis.

Like in California courts, federal appeals have the best chance to succeed when they are based on mistake of law.

The timeline for resolving appeals varies. A general rule of thumb with an appeal is to expect at least a year from when the notice of appeal is filed before the appeals court will issue an opinion. If less great, but don’t be surprised if it is more. Appeals take time but can completely change the tide of a litigation so that time and expense could be well worth it.

Generally, no. Appellate courts review the record created in the trial court. New evidence is not allowed on appeal. Limited exceptions to this rule may apply, like when a party can show that the evidence could not have been presented at the trial court level.

No. In fact, some appellate courts have mandatory alternative dispute resolution mechanisms that parties must go through to see if settlement is possible before going through the time and expense of the appeals process. Some cases do settle while an appeal is pending. However, since an appeal, like a trial, can widely swing the positions of the parties, if one side has prevailed at the trial court level they may rather take their chances protecting that victory on appeal than settling. On the other hand, the leverage of a pending appeal may bring the opposing party to the table in an appropriate circumstance.

Whether you are an attorney who wants to challenge or defend a trial court outcome on behalf of a client or a client who wants to seek new or additional counsel for the appeals process, finding the right appellate attorney can be challenging. To find the right appeals attorney, consider their experience in appellate practice, knowledge of the specific legal issues in your case, their legal research and writing skills (for brief writing), and their oral advocacy skills (for oral argument). It's crucial to schedule consultations, discuss your case, and inquire about their approach to appellate advocacy. Additionally, referrals from trusted legal professionals can be valuable in identifying skilled appellate attorneys.