The Nuts and Bolts of California Appellate Practice

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By Gregory A. Mase and Andrew J. Chan

When a trial court dismisses a case or enters final judgment,^[i] basic practical requirements must be followed to competently represent clients in state appellate court. The following article discusses relevant appellate rules as well as tips for successfully navigating the appellate process. 

In the 2018 fiscal year, there were 2,922 civil appeals.^[ii]  70% of civil appeals were fully affirmed,^[iii] 81% were at least partially affirmed,^[iv] 4% of appeals were dismissed,^[v]  15% of majority opinions in civil opinions were published,^[vi] and 90% of appeals were processed from notice of appeal to the filing opinion within 999 days.^[vii]

1. Time Limitations

a. Notice of Appeal

An appellant must file a notice of appeal the earlier of (1) 60 days after service of a notice of entry of judgment or (2) 180 days after judgment.^[viii]

If another party appeals, any other party may cross-appeal 20 days after service of the first appeal or any applicable order granting a motion for new trial or motion to vacate.^[ix]

b. Record on Appeal^[x]

Within 10 days after filing the notice of appeal, the appellant must serve and file a notice in the superior court designating the record on appeal.^[xi]

The notice of appeal must elect to use an appendix, if preferred.^[xii]  The respondent must file and serve a notice to the superior court electing to use an appendix within 10 days after the notice of appeal is filed.^[xiii]  The superior court will send the register of actions to the parties and the parties may prepare separate appendixes or a joint appendix.^[xiv]

c. Briefs

The appellant must file and serve its opening brief within 40 days after the record is filed or 70 days after the filing of a rule 8.124 election to proceed without a reporter’s transcript.^[xv]

The respondent must file and serve its brief within 30 days after the opening brief.^[xvi]

The appellant must file and serve its reply brief (if any) 20 days after the respondent’s brief.^[xvii]

Parties must also file a certificate of interested entities or persons with their initial briefs (or with any motions filed before their initial briefs)^[xviii] and are under a duty to promptly supplement the certificate if needed.^[xix]

d. Extensions of Time

The appellate process is generally more courteous and cooperative than civil practitioners may be accustomed to at the trial court level.  It is customary, therefore, to stipulate and agree on multiple extension of time for briefing and other matters.  

The parties may stipulate to extend the time for briefs up to 60 days and the court may not shorten such a stipulated extension.^[xx]

A party may also seek an extension for briefing on showing of good cause[xxi] if unable to obtain a stipulation or if the extension exceeds the 60 days stipulation extension period.^[xxii]

Please also note that the failure to timely file a brief will result in the court clerk notifying the party in writing that the brief must be filed within 15 days.  If the party still fails to comply, the court may dismiss the appeal; decide the appeal on the record, the opening brief, and any oral argument by the appellant; and/or sanction the party.^[xxiii]

2. Contents

a. Notice of Appeal

The appellant and its counsel must sign the notice of appeal and identify the particular judgment or order being appealed.^[xxiv]

b. Record on Appeal

The notice designating the record on appeal to the superior court must contain (1) the filing date of the notice of appeal; (2) the form of the record appellant elects to use; (3) election to proceed with or without a record of the oral proceedings; and (4) any administrative records, if applicable.^[xxv]

The appendix must contain (A) the notice of appeal; (B) any appealed judgment and notice of entry; (C) any order appealed and its notice of entry; (D) any applicable post-trial or post-judgment motions and notice of entry; (E) any notices or stipulations to prepare clerk’s or reporter’s transcripts; and (F) the register of actions, if any.^[xxvi]

The appendix must also contain any document filed or lodged in the superior court, proposed exhibit, and jury instruction if needed for proper consideration of the appeal;^[xxvii] as well as any notice of election to present the appeal by a settled statement.^[xxviii]  A settled statement is a summary of the superior court proceedings approved by the superior court, which may be used as the record of the oral proceedings in the superior court instead of a reporter’s transcript.^[xxix]

c. Briefs

Each brief must begin with a table of contents and table of authorities; state each point under a separate heading or subheading summarizing the point and supporting with argument and cited authority (if possible); support reference to the record by a citation to the volume and page number of the record.^[xxx]

In addition, the appellant’s opening brief must state the nature of the action, relief sought, appealed judgment or order, that the judgment is final or otherwise appealable, and provide a summary of significant facts.^[xxxi]

The cover must state the title of the brief; the title, trial court number, and Court of Appeal number; the names of the trial court and judge(s), and the party that each attorney represents.^[xxxii]

Briefs must be in roman font,^[xxxiii] no smaller than 13-point (including footnotes),^[xxxiv] and at least 1.5 spaced.^[xxxv]

Briefs also must not exceed 14,000^[xxxvi]  words or 50 pages,^[xxxvii] and must include a certificate stating the number of words (excluding the tables and certificates).

3. E-Filing

The appellate courts generally require electronic filing by represented parties, subject to excuse for undue hardship or significant prejudice.^[xxxviii]  All electronically filed documents must be text-searchable, paginated, bookmarked, protect sensitive information, and may not be larger than 25 mb.^[xxxix]  Hyperlinks to legal authorities and appendixes or exhibits are encouraged, but not required.^[xl]

If electronically filing a document signed under penalty of perjury, the declarant must sign a print form of the document and the electronic filer certifies that the original signed document is available for inspection and copying by the court or any other party within 5 days of a demand.^[xli] This requirement does not apply to documents not signed under the penalty of perjury. 

4. Oral Argument

If ordered, the court will provide at least a 20-day notice of oral argument, each side is permitted 30 minutes for argument, the appellant has the right to open and close, and only one attorney may argue for each party.^[xlii]

5. Costs on Appeal^[xliii]

In appellate matters, the prevailing party is entitled to costs on appeal.  Within 40 days after the appellate clerk enters a remittitur for prevailing party costs, the prevailing party must serve and file in the superior court a verified memorandum of costs pursuant to Cal. Rules of Court, Rule 3.1700. 

Reasonable costs include (A) filing fees; (B) costs for the records; (C) costs to produce additional evidence; (D) service and notarizing costs; (E) printing costs; (F) costs for surety bonds or fees and net interest; and (G) borrowing costs. 

This does not automatically include attorney fees, but a party may seek contractual or statutory fees pursuant to Cal. Rules of Court, Rule 3.1702, if applicable. 

About the Authors:

Ericksen Arbuthnot is celebrating its 70th year of service to clients throughout California and its experienced litigators have extensive knowledge and skill handling matters in appellate, civil litigation, and many other practice areas. 

Gregory A. Mase is a Senior Counsel in Ericksen Arbuthnot’s Oakland/East Bay office and co-chair of the firm’s Appellate Practice Group.  Andrew J. Chan is a Senior Associate in Ericksen Arbuthnot’s Oakland/East Bay office, a member of the firm’s Appellate Practice Group. Mr. Mase can be reached at (510) 832-7770 or gmase@ericksenarbuthnot.com.  Mr. Chan can be reached at (510) 832-7770 or achan@ericksenarbuthnot.com.

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[i] Please note that the scope of this article is limited to civil appeals from superior court and does not include the writ process or appeals in criminal, family law, or probate matters. 

[ii] See Judicial Council of California, 2019 Court Statistics Report: Statewide Caseload Trends, 2008-09 through 2017-2018 <https://www.courts.ca.gov/documents/2019-Court-Statistics-Report.pdf [accessed June 5, 2020]> (“2019 CSR”), p. 90 (compared with 2,446 in 2017 and 2,838 in 2016).

[iii] 2019 CSR, p. 90 (compared with 68% in 2017 and 69% in 2016). 

[iv] 2019 CSR, p. 90 (compared with 79% in both 2017 and 2016). 

[v]  2019 CSR, p. 90 (compared with 4% in both 2017 and 2016). 

[vi] 2019 CSR, p. 91. 

[vii]  2019 CSR, p. 50.

[viii] Cal. Rules of Court, Rule 8.104, subd. (a).  “Judgment” includes an appealable order if the appeal is from an appealable order.  Cal. Rules of Court, Rule 8.104, subd. (e).  Please also note that no court may extend the time to file a notice of appeal.  Cal. Rules of Court, Rule 8.104, subd. (b).  However, it a petitioner moves for new trial, to vacate judgment, for judgment notwithstanding the verdict, to reconsider an appealable order, the deadline to appeal is the earlier of 30 days after service of an order denying the motion, denial of the motion by operation of law, or 180 days after entry of judgment.  Cal. Rules of Court, Rule 8.108, subd. (b)-(e).  Public entities may also extend the deadline for a notice of appeal 90 days after service of a notice of entry or 180 days after entry of judgment if requesting a mandatory settlement conference, election to pay, or motion for posttrial hearing on reducing judgment.  Cal. Rules of Court, Rule 8.108, subd. (f). 

[ix] Cal. Rules of Court, Rule 8.108, subd. (g). 

[x] See, i.e., Cal. Rules of Court, Rule 8.120. 

[xi] Cal. Rules of Court, Rule 8.121, subd. (a). 

[xii] Cal. Rules of Court, Rule 8.124, subd. (a)(1)(A).  

[xiii] Cal. Rules of Court, Rule 8.124, subd. (a)(1)(B). 

[xiv] Cal. Rules of Court, Rule 8.124, subd. (a)(2)&(3). 

[xv] Cal. Rules of Court, Rule 8.212, subd. (a)(1). 

[xvi] Cal. Rules of Court, Rule 8.212, subd. (a)(2). 

[xvii] Cal. Rules of Court, Rule 8.212, subd. (a)(3). 

[xviii] Cal. Rules of Court, Rule 8.208, subd. (d)(1). 

[xix] Cal. Rules of Court, Rule 8.208, subd. (f). 

[xx] Cal. Rules of Court, Rule 8.212, subd. (b)(1)&(2). 

[xxi] Cal. Rules of Court, Rule 8.200, subd. (c)(6) &(7). 

[xxii] Cal. Rules of Court, Rule 8.212, subd. (b)(3). 

[xxiii] Cal. Rules of Court, Rule 8.220, subd. (a)&(c).  If needed, the party may apply for an extension of the 15 day period within which to file a brief.  Cal. Rules of Court, Rule 8.220, subd. (d). 

[xxiv] Cal. Rules of Court, Rule 8.100, subd. (a).  Please note that the notice of appeal must be accompanied by the $775 filing fee and $100 deposit to the superior court or an application for a waiver of court fees and costs or an order granting such an application.  Cal. Rules of Court, Rule 8.100, subd.(b). 

[xxv] Cal. Rules of Court, Rule 8.121, subd. (b). 

[xxvi] Cal. Rules of Court, Rules 8.124, subd. (b)(1)(A); 8.122, subd. (b)(1).  Please note that the documents in (A)-(D) must show the dates necessary to determine the timeliness of the appeal.  Cal. Rules of Court, Rules 8.122, subd. (b)(2). 

[xxvii] Cal. Rules of Court, Rules 8.124, subd. (b)(1)(B); 8.122, subd. (b)(3). 

[xxviii] Cal. Rules of Court, Rule 8.124, subd. (b)(1)(C). 

[xxix] Cal. Rules of Court, Rule 8.137, subd. (a). 

[xxx] Cal. Rules of Court, Rule 8.204, subd. (a)(1). 

[xxxi] Cal. Rules of Court, Rule 8.204, subd. (a)(2). 

[xxxii] Cal. Rules of Court, Rule 8.204, subd. (b)(10). 

class=”footnote”[xxxiii] Cal. Rules of Court, Rule 8.204, subd. (b)(3). 

[xxxiv] Cal. Rules of Court, Rule 8.204, subd. (b)(4). 

[xxxv] Cal. Rules of Court, Rule 8.204, subd. (b)(5). 

[xxxvi] Cal. Rules of Court, Rule 8.204, subd. (c)(1). 

[xxxvii] Cal. Rules of Court, Rule 8.204, subd. (c)(2).  However, the presiding justice may permit a longer brief for good cause on application.  Cal. Rules of Court, Rule 8.204, subd. (c)(6). 

[xxxviii] Cal. Rules of Court, Rule 8.71. 

[xxxix] Cal. Rules of Court, Rule 8.74. 

[xl] Cal. Rules of Court, Rule 8.74, subd. (b)(5). 

[xli] Cal. Rules of Court, Rule 8.75, subd. (a). 

[xlii] Cal. Rules of Court, Rule 8.256, subd. (b)&(c). 

[xliii] Cal. Rules of Court, Rule 8.278.