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Appeals, Writs, and Complex Motions Practice

Oral Argument

Take a Walk on the Wild Side (Over to the Court of Appeal for Oral Argument) © 2014 In this article, Mr. Sargeant and co-author Linda Conrad explain how observing a few oral arguments before you take an appeal or file a brief in the appellate court can help you win your appeal: Be aware of procedural technicalities because they can lose the appeal; Make sure to file the notice of appeal on time; Understand your standard of review; make sure you have standing; and be prepared for oral argument.


(Originally published in the CCTLA Litigator magazine.)

You’ve lived with the case for five years. You know it better than anyone. Then your client’s case is pulverized by the trial court’s evidentiary and legal rulings.  We’ve all seen it happen. You pick yourself up, dust yourself off, and swear you’ll get even on appeal. You know are right on the facts, right on the law, and it would be impossible for the Court of Appeal to rule otherwise.

You file your appeal and your briefing is flawless. You know your strength is your oral argument. You are prepared for every question the justices might ask and you know your record and the law better than anyone else. The sun is shining brightly while you walk from the parking garage and up the steps to the court or appeal. You are relaxed as you smile and say, “hello” to the security guard. You walk with other counsel through the security line and leave your telephone behind. Your case is first on the calendar, so you take your place standing at the lectern while the Justices file into the courtroom and take their seats.

Then your bubble bursts. The Acting Presiding Justice barely lets you say your name before she starts peppering you with questions about procedural issues that were not raised in your briefing or respondent’s briefing. “When was the notice of judgment entered and mailed?” “When did you file the motion for a new trial?” “Isn’t it true that the trial court failed to make a decision within the time allowed so the motion for a new trial was deemed denied on this date?” “Isn’t it true that by the time the court denied the motion for a new trial it was already deemed denied by operation of law?” “Isn’t it true that by the time you filed the appeal from the court’s denial of your motion from the new trial the time for appeal had already lapsed?” With a sinking heart you realize that the appellate court is not going to reach the merits of your case and you will be losing your appeal on a procedural technicality. After you pick up your telephone and leave the courthouse, storm clouds obscure the sun and it begins to rain.

Kimball recently had occasion to watch oral arguments in three cases while waiting for his own. We thought each of those cases had good messages for civil litigators planning to brief and argue their own appeals.

Merits, Schmeritz.

It may be small solace to learn that an insurance company can lose its appeal on a procedural technicality too, as it appears will happen in the first oral argument Kimball observed. Imagine an insurance company losing its appeal–because it couldn’t get a client to authorize it to defend it in a lawsuit. In that appeal, a lawsuit was filed against a long-since dissolved California corporation, which may or may not have had insurance coverage during the period in question. The insurance company eventually provided a defense to the corporation under a reservation of rights.

After fully briefing the case, the parties were ordered by the Court of Appeal to file supplemental briefing on the question of whether the insurance defense firm was properly before the court representing the defunct California company. Apparently, no representative from the dissolved corporation had ever been located to accept, on the company’s behalf, representation by the law firm chosen by the insurance company. While the lack of authorization was briefly noted by the trial judge, the case was decided on its merits.

During oral argument, however, the appellate panel was clearly inclined to dismiss the appeal because the corporation never authorized the appeal or, for that matter, even representation in the trial court. The insurance company will likely lose on a technicality. This case illustrates that the Courts of Appeal will carefully scrutinize the record to ensure the matter is properly before it, even if the potential problem was not fully identified or perhaps even overlooked entirely by the parties and trial judge below.

Traps Spring on the Unwary.

In the next matter Kimball observed, the Appellate Court indicated during oral argument it would likely be dismissing the appeal without ruling on the merits because the appeal was untimely.

In that case, the plaintiff had sued and obtained a civil judgment against the defendant. The defendant eventually obtained a lawyer who, over a year after the judgment had been entered, moved in the trial court to vacate the judgment as based on a legally prohibited cause of action, arguing it therefore was void and subject to challenge at any time. When that motion was denied, the defendant’s attorney filed a notice of appeal, presumably within 60 days after notice of entry of the order.

After the parties submitted briefing on the merits, appellant’s attorney was blind-sided at oral argument when the panel began asking questions regarding the timeliness of the appeal. The justices pointed out that California Rules of Court, rule 8.108 required that an appeal from an order on a motion to vacate a judgment be filed (assuming the other conditions are not met) no later than 180 days after entry of judgment.

Shockingly, respondent’s attorney argued that he also believed the appeal was timely and asked the court to rule in his client’s favor on the merits. Respondent’s attorney failed to abide by the old adage: “don’t look a gift horse in the mouth!”

If an appeal is untimely, the appellate court lacks jurisdiction. Nothing is more important than getting your appeal filed on time and understanding the different limitations periods that apply to each unique situation. This oral argument is an example of one of many traps for the unwary. The Court of Appeal is ever vigilant in ferreting out untimely appeals and dismissing them, even after full briefing on the merits and even where both appellate counsel miss the issue or want a ruling on the merits.

Abuse of Discretion is Hard to Do.

Even an experienced appellate practitioner against a pro per client will have a hard time winning an appeal where the standard of review is abuse of discretion. In the third case on calendar, the appellant’s trial attorney sought to file a late opposition to a motion based on newly-received discovery information. The trial judge refused to consider the late filing and also denied a discretionary motion for relief under CCP § 473.

Despite the best efforts of appellant’s counsel and the lack of any briefing by the unrepresented respondent, the appellate bench was unsympathetic to appellant during oral argument. Appellant’s problem was that the evidence with which he sought to attack the trial judge’s order had been excluded from consideration by the judge, and the trial court’s decision to deny consideration of the late opposition is only reviewable on appeal under an “abuse of discretion” standard. That standard of review is one of the most difficult to overcome.

This case illustrates that a crucial consideration in deciding whether to appeal an order or judgment, and evaluating your likelihood of success, is determining the applicable standard of appellate review for the issues you intend to raise. As shown by the appellate court’s questions in this oral argument, the standard of review usually determines the result in your case.

Stay Well-Grounded.

Our final example of simple mistakes that derail your appeal is illustrated by what happened during the oral argument, the last on calendar that day, handled by our office and argued by Kimball. At the underlying hearing, trial counsel for petitioner made little more than a “general objection” to the court’s proposed ruling. Yet after the trial judge made the court’s proposed orders based on the ruling, the petitioner appealed the orders.

At oral argument, appellant’s attorney began by stating she had not asked for oral argument and told the court that she wanted to reserve all of her time for rebuttal. Ignoring the request, the panel peppered her with questions about lack of standing to even raise certain issues and the failure to object to the proposed ruling in the trial court. The Court seemed inclined to find that the trial counsel’s failure to properly object on the grounds she now argued on appeal meant she had forfeited those arguments.

It bears repeating: To be effective, an objection must be specific and state the legal grounds upon which it is based. Even if the judge’s proposed procedure seems outlandish or an intended ruling ridiculous, counsel must object with specific grounds for the objection to preserve the right to challenge the ruling or order on appeal. In our case, the appellate panel seemed unimpressed by appellant counsel’s complaint that, because notice of the hearing was so short and there was no indication in the notice what the court intended to do, the party had no fair opportunity to object. Counsel must be prepared to make a good solid objection in the trial court even to surprise rulings.

The Best Way to Win your Appeal is to Win in the Trial Court.

The previous two examples illustrate another important factor in evaluating the likelihood of success on appeal – the likelihood of winning increases dramatically if the case is won in the trial court. The appellate courts presume that the trial court’s decision is correct. Some Justices sitting in Southern California districts have even been heard to state that they believe their job is to affirm the trial court’s orders.

Depending on the applicable standard of appellate review, the Court of Appeal will give considerable, if not practically insurmountable deference to the trial court’s rulings, orders and judgments. The reversal rate on appeal in our civil cases is approximately 20% statewide. Part of the reason for that relatively high reversal rate in civil cases, compared to other appellate matters, is that some personal injury and general civil litigation cases are lost on demurrer or summary judgment, and those rulings are reviewed on appeal under a de novo, or independent, standard. Now that’s a standard we can work with!

The Court of Appeal, Third Appellate District hears argument during one week each month – check the court’s website for the tentative calendar and pick a day with more civil cases. Then take a walk over to the court one morning or afternoon to observe a few oral arguments: You will be entertained and may see a few things to avoid in order to win your own appeal.