Estate Planning and Business Law

Appeals in Limited Civil Cases in California

Right to Appeal

The right of appeal is wholly statutory. No judgment or order can be appealed unless the right of appeal is expressly authorized by statute. In a limited civil case, the appeal from a trial court's judgment or an appealable order may be taken in the Appellate Division of the Superior Court. Superior courts usually review only for errors of law that, if uncorrected, would result in a miscarriage of justice; such error must result in injury to the party in order to justify reversal [see Cal. Const., art. VI, § 13].

Appellate Division of the Superior Court

The appellate division may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, and may, if necessary or proper, direct a new trial or further proceedings to be had [Code Civ. Proc. § 906].

Calendaring an Appeal in the Appellate Division

All appeals in the appellate division, in which the last reply brief was filed, or the time for filing this brief expired 45 or more days before the date of a regular appellate division session, must be placed on the calendar for that session by the appellate division clerk. By order of the presiding judge or the division, any appeal may be placed on the calendar for oral argument at any session [Cal. Rules of Ct., Rule 8.885(a)].

Oral Arguments in the Appellate Division

As soon as all the parties' briefs are filed or the time for filing these briefs has expired, the appellate division clerk must send a notice of the time and place of oral argument to all parties. [Cal. Rules of Ct., Rule 8.885(c)(1)].

Unless the court provides otherwise, at the hearing on the appeal the appellant, petitioner, or moving party has the right to open and close. If there are two or more such parties, the court sets the sequence of argument [Cal. Rules of Ct., Rule 8.885(e)(1)].

Each side is allowed 10 minutes for argument. The appellant may reserve part of this time for reply argument. If multiple parties are represented by separate counsel, or if an amicus curiae, on written request, is granted permission to argue, the court may apportion or expand the time [Cal. Rules of Ct., Rule 8.885(e)(2)].

Written Opinion

Appellate division judges are not required to prepare a written opinion in any case but may do so when they deem it advisable or in the public interest. [Cal. Rules of Ct., Rule 8.887(a)].

Finality of Decision

With a few exceptions, an appellate division decision is final 30 days after the decision is filed [Cal. Rules of Ct., Rule 8.888(a)(1)].

The following appellate division decisions are final in that court when filed [Cal. Rules of Ct., Rule 8.888(a)(3)]:

1. The denial of a petition for writ of supersedeas.

2. The denial of an application for bail or to reduce bail pending appeal.

3. The dismissal of an appeal on request or stipulation.

Certification for Publication

If the appellate division certifies a written opinion for publication or partial publication after its decision is filed and before its decision becomes final in that court, the finality period runs from the filing date of the order for publication [Cal. Rules of Ct., Rule 8.888(a)(2)].

Rehearing

At any time before a judgment of an appellate division becomes final, the appellate division may vacate the judgment and order a rehearing [Cal. Rules of Ct., Rule 8.889(a)].

The appellate division of the superior court must grant a rehearing on timely petition by a party when the court has based its decision on an issue that was not proposed or briefed by any party to the proceeding, and the court failed to give the parties an opportunity to submit supplemental briefs on that issue [Gov. Code § 68081].

A party may serve and file a petition for rehearing within 15 days after [Cal. Rules of Ct., Rule 8.889(b)(1)]:

1. The decision is filed.

2. A publication order restarting the finality period under Cal. Rules of Ct., Rule 8.888(a)(2), if the party has not already filed a petition for rehearing.

3. A modification order changing the appellate judgment under California Rules of Ct., Rule 8.888(b).

4. The filing of a consent under California Rules of Ct., Rule 8.888(c).

A party must not file an answer to a petition for rehearing unless the court requests an answer. Any answer must be served and filed within eight days after the order is filed unless the court orders otherwise. A petition for rehearing normally will not be granted unless the court has requested an answer [Cal. Rules of Ct., Rule 8.889(b)(2)].

The petition and answer must comply with the relevant provisions of California Rules of Ct., Rule 8.883 [Cal. Rules of Ct., Rule 8.889(b)(3)]. Before the decision is final and for good cause, the presiding judge may relieve a party from a failure to file a timely petition or answer [Cal. Rules of Ct., Rule 8.889(b)(4)].

An order granting a rehearing vacates the decision and any opinion filed in the case. If the appellate division orders rehearing, it may place the case on calendar for further argument or submit it for decision [Cal. Rules of Ct., Rule 8.889(d)].

Transfer to the Court of Appeal

Code Civ. Proc. § 911 provides that a court of appeal may, under certain circumstances, order any case on appeal to a superior court in its district transferred to it for hearing and decision as provided by Cal. Rules of Ct., Rules 8.1000-8.1018 [see Code Civ. Proc. § 911].

A court of appeal may order a case transferred to it for hearing and decision if it determines that transfer is necessary to secure uniformity of decision or to settle an important question of law [Cal. Rules of Ct., Rule 8.1002].

The court of appeal may order transfer either [Cal. Rules of Ct., Rule 8.1008(a)(1)]:

1. After the appellate division certifies the case for transfer or on petition for transfer, within 20 days after the record sent under Cal. Rules of Ct., Rule 8.1007 is filed in the court of appeal.

2. On its own motion, within 30 days after the appellate division decision is final in that court.

The court of appeal may extend the time for ordering a case transferred from the superior court to the court of appeal on the court of appeals own motion, as provided in Cal. Rules of Ct., Rule 8.1008, by not more than 20 days [Cal. Rules of Ct., Rule 8.1008(a)(2)].

Transfer Upon Certification by the Appellate Division

A case may be transferred to the court of appeal when the superior court certifies that such transfer appears necessary to secure uniformity of decision or to settle important questions of law [Cal. Rules of Ct., Rule 8.1005(a); see Code Civ. Proc. § 911]. Despite certification, the court of appeal may refuse the transfer [Dvorin v. Appellate Dep't of Superior Court (1975) 15 Cal. 3d 648, 650, 125 Cal. Rptr. 771, 542 P.2d 1363].

The superior court may certify a transfer to the court of appeal on the application of a party or on its own motion. The certification may be made by a majority of the appellate division judges to whom the case has been assigned or who decided the appeal or, if the case has not yet been assigned, by any two judges of the appellate division. [Cal. Rules of Ct., Rule 8.1005(a)].

The appellate division may certify a case for transfer at any time after the record on appeal is filed in the appellate division and before the appellate division judgment decision is final in that court [Cal. Rules of Ct., Rule 8.1005(c)].

If the appellate division orders a case certified for transfer, the clerk must promptly send a copy of the certification order to the court of appeal clerk, the parties, and, in a criminal case, the Attorney General. If the appellate division denies a certification application by order, the clerk must promptly send a copy of the order to the parties [Cal. Rules of Ct., Rule 8.1005(e)].

Transfer Upon Application of a Party

A party may serve and file an application asking the appellate division to certify a case for transfer at any time after the record on appeal is filed in the appellate division but no later than 15 days after either [Cal. Rules of Ct., Rule 8.1005(b)]:

1. The decision is filed.

2. A publication order restarting the finality period under Cal. Rules of Ct., Rule 8.888(a)(2).

3. A modification order changing the appellate judgment under Cal. Rules of Ct., Rule 8.888(b).

4. The filing of a consent under Cal. Rules of Ct., Rule 8.888(c).

Any party may serve and file an answer within five days after the filing of the application for certification [Cal. Rules of Ct., Rule 8.1005(b)].

No hearing is held on the application, and the failure of the court to certify the case within the time specified in Cal. Rules of Ct., Rule 8.1005(c) is deemed a denial of the application [Cal. Rules of Ct., Rule 8.1005(b)].

Transmitting Record to Court of Appeal

To assist the court of appeal in determining whether to order transfer, the superior court clerk must send the record to the court of appeal within five days after either [Cal. Rules of Ct., Rule 8.1007(a)(1)]:

1. The appellate division certifies a case for transfer under rule 8.1005;

2. The superior court clerk sends a copy of an appellate division opinion certified for publication to the Court of Appeal under rule 8.887;

3. The superior court clerk receives a copy of a petition for transfer under rule 8.1006; or

4. The superior court receives a request for the record from the Court of Appeal.

The court of appeal clerk must promptly notify the parties when the clerk files the record [Cal. Rules of Ct., Rule 8.1007(a)(2)].

The record sent to the court of appeal must contain the original record on appeal prepared under Cal. Rules of Ct., Rules 8.831-8.842, any briefs filed in the appellate division, the decision of the appellate division, any application for certification for transfer, any answer to that application, and the appellate division's order on the application [Cal. Rules of Ct., Rule 8.1007(b)].

Denial of Transfer

If the court of appeal does not timely order a transfer, the transfer is deemed denied [Cal. Rules of Ct., Rule 8.1008(a)(3)].

If the court denies transfer after the appellate division certifies a case for transfer or after a party files a petition for transfer, the clerk must promptly send notice of the denial to the parties, the appellate division, and, in a criminal case, the Attorney General [Cal. Rules of Ct., Rule 8.1008(b)(3)].

A petition for review by the California Supreme Court may not be filed after denial of a transfer to a court of appeal in a case within the appellate jurisdiction of a superior court [Cal. Rules of Ct., Rule 8.500(a)(1)].

Order Certifying a Case for Transfer

An order certifying a case for transfer must [Cal. Rules of Ct., Rule 8.1005(d)]:

1. Clearly state that the appellate division is certifying the case for transfer to the court of appeal;

2. Briefly describe why transfer is necessary to secure uniformity of decision or to settle an important question of law; and

3. State whether there was a decision on appeal and, if so, its date and disposition.

Cal. Rules of Ct., Rule 8.1005 (Certification), as repealed and adopted effective January 1, 2007, by the California Judicial Council, has no provision for extending the time for filing certification.

Appellate Court Clerk's Duties Upon Transfer or Denial of Transfer

When a transfer order is filed, the clerk must promptly send a copy of the order to the superior court clerk, the parties, and, in a criminal case, the Attorney General [Cal. Rules of Ct., Rule 8.1008(b)(1)]. With the transfer order, the clerk must send notice of the time to serve and file any briefs ordered under Cal. Rules of Ct., Rule 8.1012, and, if specified by the court of appeal, the issues to be briefed and argued [Cal. Rules of Ct., Rule 8.1008(b)(2)].

If the court denies transfer after the appellate division certifies a case for transfer or after a party files a petition for transfer, the clerk must promptly send notice of the denial to the parties, the appellate division, and, in a criminal case, the Attorney General [Cal. Rules of Ct., Rule 8.1008(b)(3)]. Failure to mail the order or notice does not affect the court of appeal's jurisdiction [Cal. Rules of Ct., Rule 8.1008(b)(4)].

When the appellate division certifies a case for transfer or the court of appeal orders transfer, further action by the appellate division is limited to preparing and sending the record under Cal. Rules of Ct., Rule 8.1007 until termination of the proceedings in the court of appeal [Cal. Rules of Ct., Rule 8.104].

When the court of appeal denies or vacates transfer or issues a remittitur under Cal. Rules of Ct., Rule 8.1018(c), the court of appeal clerk must return to the appellate division the record sent to the court of appeal under Cal. Rules of Ct., Rule 8.1007 and any exhibits [Cal. Rules of Ct., Rule 8.1018(d)].

Briefs After Transfer Ordered

Unlike some stays issued by the trial court, the stay under Cal. Rules of Ct., Rule 8.1014 does not require an undertaking by either party.

After the court of appeal orders transfer, the parties may file briefs in the court of appeal only if ordered by the court. The court may order briefs either on a party's application or the court's own motion. The court of appeal may prescribe the briefing sequence in any briefing order [Cal. Rules of Ct., Rule 8.1012(a)(1)]. Instead of filing a brief, a party may join in or adopt by reference all or part of a brief filed in the court of appeal in the same or a related case [Cal. Rules of Ct., Rule 8.1012(a)(2)].

Unless the court orders otherwise pursuant to Cal. Rules of Ct., Rule 8.1012(a), the opening brief must be served and filed within 20 days after entry of the briefing order [Cal. Rules of Ct., Rule 8.1012(b)(1)]. The responding brief must be served and filed within 20 days after the opening brief is filed [Cal. Rules of Ct., Rule 8.1012(b)(2)]. Any reply brief must be served and filed within 10 days after the responding brief is filed [Cal. Rules of Ct., Rule 8.1012(b)(3)].

The proof of service of every brief must be served on the appellate division from which the case was transferred [Cal. Rules of Ct., Rule 8.1012(c)(2)].

Except as provided in Cal. Rules of Ct., Rule 8.1012, briefs must comply with the form and contents requirements of Cal. Rules of Ct., Rule 8.204(a)(1), (b), and (d) [Cal. Rules of Ct., Rule 8.1012(d)].

On or after ordering transfer, the court of appeal may specify the issues to be briefed and argued. Unless the court orders otherwise, the parties must limit their briefs and arguments to those issues and any issues fairly included in those issues [Cal. Rules of Ct., Rule 8.1012(e)(1)]. Notwithstanding such an order, the court may, on reasonable notice, order oral argument on fewer or additional issues or on the entire case [Cal. Rules of Ct., Rule 8.1012(e)(2)].

Appellate Court's Decision

If the court of appeal issues a decision on a case it has ordered transferred from the appellate division, filing, finality, and modification of that decision are governed by Cal. Rules of Ct., Rule 8.264 and remittitur is governed by Cal. Rules of Ct., Rule 8.272, except that the clerk must address the remittitur to the appellate division and send that court two copies of the remittitur and two file-stamped copies of the court of appeal opinion or order [Cal. Rules of Ct., Rule 8.1018(c)]. On receiving the court of appeal remittitur, the clerk of the appellate division must promptly issue a remittitur if there will be no further proceedings in that court [Cal. Rules of Ct., Rule 8.1018(c)].

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