Public Entities on Appeal:
Important Issues
GEORGE E. MURPHY
MURPHY, CAMPBELL, GUTHRIE & ALLISTON A PROFESSIONAL LAW CORPORATION
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I. SHOULD YOU APPEAL?
A. The chances for success.
1. Most appeals do not succeed. Appellate courts uphold about 80 to 90
percent of rulings that are appealed.
2. In most cases, the presumptions are against appellant. The Court of
Appeal presumes:
a. The trial court followed proper procedures;
b. That evidence to support any necessary finding is in the record;
c. That the judge made findings necessary that could be inferred from
the evidence;
d. That the judge correctly applied the law to the findings;
e. That even if the judge did commit error, it was not prejudicial.
3. The appellate court does not substitute its judgment for that of the trial
judge. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618.)
B. What does it mean to win?
1. Most of the time a reversal results in a new trial. Success on appeal
usually means further expense at the trial court level, and possibly
another appeal.
2. However, in some cases a reversal results in a remand to the trial
court with instructions to enter a judgment in favor of the appellant.
Whether or not a new trial will be required depends on why the
judgment was reversed.
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C. The cost benefit analysis.
1. The appeal process moves slowly.
2. Attorneys fees are significant.
a. A winning brief takes longer to prepare than most people realize. It
is written and rewritten many times, honed and crafted to a much
greater degree than briefs filed in the trial court. Even the process
of deciding which issues to appeal involves a substantial amount of
time in research, record review, deliberation and analysis before
the writing process even begins. Appellate judges frequently
complain that attorneys do not spend enough time preparing briefs.
D. If the appeal involves a money judgment, interest accrues at the rate of 10
percent simple interest, per annum, or 7 percent in the case of public
entities. Also, it may be necessary to obtain a bond to stay the effect of a
money judgment, although public entities are exempt.
E. Is an appeal ever worth it?
1. The answer is, of course, yes. Where the stakes are sufficiently high
and there is a reasonable opportunity to argue the existence of “legal
error”, an appeal is warranted.
2. Although raw statistics indicate a low chance for success, that is
partially because appeals are filed in many cases where there is
virtually no appealable issue or the issues have not been effectively
presented and persuasively argued by counsel.
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II. STANDARD OF REVIEW
Standard of review refers to the degree of deference appellate courts
grant a particular type of trial court ruling. There are three general
grounds upon which to seek reversal:
1. Legal error;
2. Abuse of discretion; and
3. Lack of substantial evidence.
A. The Substantial Evidence Rule – how appellate court resolves instances
of conflicting evidence
1. “Substantial” evidence refers to quality, not quantity.
2. The appellate court will not reweigh evidence; but does weigh
evidence to determine if legal error is prejudicial.
3. If there is evidence to support the judgment, the court will affirm
(unless other error).
4. Evidence is viewed most favorable to respondent.
5. Testimony of a single credible witness may be sufficient.
6. “Substantial” does not equal “any;” it must be reasonable, credible, and
of solid value. Evidence which is inherently improbable may be
disregarded – e.g., if defies scientific knowledge.
7. The rule is not invoked if the trial court has not properly performed its
weighing function.
8. Burden of proof is irrelevant to appellate court’s review of evidence.
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9. Sometimes appellate court will reject expert witness testimony if it is
not based on facts otherwise proved or if it is based on assumed facts
contrary to the only proof.
10. Be careful to determine if evidence is really conflicting on pivotal issue.
There may be a key evidentiary gap to exploit.
B. Abuse of Discretion
1. A “clear abuse” is required.
2. The trial court gets wide latitude.
3. It is difficult to show abuse.
4. Consider arguing that the trial court used the wrong legal standard in
exercising its discretion, which would constitute legal error.
5. Consider making argument based on countervailing policy
considerations.
C. Legal Error
1. It is the appellate court’s function to review questions of law.
2. Questions of law are given independent (i.e., de novo) review. Thus,
the trial court’s decision is irrelevant.
3. Most reversed judgments are because of legal error.
4. Not every legal error will require reversal. The error must be
“prejudicial.”
a. See § 475 of Code of Civil Procedure and Calif. Const. VI, § 13: “a
miscarriage of justice” is required based on an examination of the
entire record.
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b. “Prejudicial” error is another way of asking whether the error was
“harmless”.
c. “Prejudicial” error is not presumed.
d. The Watson rule (People v. Watson (1956) 46 Cal.2d 818, 836.) A
miscarriage occurs when the appellate court determines it
“reasonably probable that a result more favorable to the appealing
party would have been reached in absence of the error.”
e. Some legal errors are regarded as “prejudicial per se.”
D. In some instances, the standard of review favors the losing party.
1. Demurrer sustained.
a. Facts alleged are deemed as “true.”
b. The ruling is erroneous if plaintiff has stated a cause of action
under any possible legal theory.
c. Ruling correct, but for wrong reason – affirmed.
2. Summary judgment.
a. A “drastic” remedy.
b. The appellate courts will reverse if “any kind of case is shown.”
c. All doubts as to the propriety of granting a motion for summary
judgment are resolved in favor of the party opposing the motion.
3. Directed verdict.
a. Only where there is no evidence to support the verdict for the
opposing party.
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b. The appellate court will accept as true the evidence in the record
which is most favorable to the party against whom the verdict has
been directed.
4. Judgment notwithstanding the verdict.
a. The appellate court views the evidence in the light most favorable
to the party who obtained the jury verdict.
5. New trial.
a. The court will affirm an order granting new trial if it should have
been granted upon any ground stated in the motion.
b. All presumptions favor the order.
c. It is rarely reversed.
d. Appellant must show clear abuse of discretion in granting the
motion.
III. STAYING ENFORCEMENT OF THE JUDGMENT
A. California Law
1. The need for a bond or undertaking in general
a. Money Judgments (Code Civ. Proc. § 917.1, subd. (a)
b. Amount: 1.5 times the amount of judgment if source is admitted
surety. (Code Civ. Proc. § 917.1, subd. (b)
(1) Costs are included in calculation in general. Attorneys fees
may or may not be.
2. Exception for public entities
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a. Section 995.220 of the Code of Civil Procedure
(1) No bond required for stay as to any public entity or person
acting in official capacity.
B. When the action is filed in Federal Court
1. FRCP 62(f): “In any state in which a judgment is a lien upon the
property of the judgment debtor and in which the judgment debtor is
entitled to a stay of execution, a judgment debtor is entitled, and the
district court held therein, to such stay as would be accorded the
judgment debtor had the action been maintained in the courts of that
state.”
a. The question is whether Section 995.220 of the California Code of
Civil Procedure is incorporated into FRCP 62(f) so as to relieve
public entities of the bond requirement.
b. Authority is split, but the only published federal case involving an
action that could have been maintained in California state court
says, “No.” (Aldasoro v. Kennerson (S.D. Cal. (1995) 915 F.Supp.
188.)
(1) However, reasonable interpretation of applicable law
should permit stay without obtaining bond.
(2) The issue focuses on the following language in FRCP
Rule 62(f): “In any state in which a judgment is a lien….”
In California a judgment lien on real property is created
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“by recording an abstract of a money judgment with the
county recorder.” (Code Civ. Proc. § 697.310.)
C. Bond may be avoided by showing defendant’s ability to pay is so plain that
posting a bond would be a waste of money. (Acevedo-Garcia v. Vera-
Monorig (1st Cir. 2002) 296 F. 3d 13,17.)
D. The Installment Payment Option
1. Government Code section 984 permits public entity to elect to pay the
judgment in periodic payments where public entity is not insured and
judgment on tort claims action exceeds threshold amount. (Threshold
amount effective January 1, 1996 was $725,000, with that amount
increasing by five percent on January 1 of each year thereafter.)
a. This option applies only with respect to public entities that are “not
insured”, which means a public entity that has no liability insurance
or is self-insured (including an insurance pooling arrangement or
joint powers agreement).
2. The public entity must serve and file a notice of election stipulating to
the terms of such payments, or a notice of hearing on such terms
within 30 days after the clerk sends, or the party serves, notice of entry
of judgment, or 60 days after entry of judgment, whichever comes first.
(California Rules of Court, Rule 389.)
E. Interest on Judgment
1. In State court public entities pay at the rate of 7 percent per annum.
(Cal. Const. Article XV, Section 1.)
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2. In Federal court post judgment interest rate based on T-bill.
a. Post judgment interest on a judgment in federal court calculated
from date of judgment at a rate based on current yield from treasury
bills. (28 USC § 1961.)
b. Interest commences upon entry of final, appealable judgment
(Dishman v. UNUM Life Ins. Co. of America (9th Cir. 2001) 269
F.3d 974, 991) and is computed daily from the date of judgment to
the date of payment, compounded annually. (Tinsley v. Sea Land
Corp. (9th Cir. 1992) 979 F.2d 1382, 1383.)
c. Where judgment is reversed for new trial, post-judgment interest
runs from date of entry of the judgment after the new trial on
remand. (Turner v. Japan Lines, Ltd. (9th Cir. 1983) 702 F.2d 752,
754-757.)
F. NOTE: Where Ninth Circuit reverses the district court’s judgment as a
matter of law, remanding with instructions to enter judgment on the jury’s
original verdict, post-judgment interest runs from entry of the original
district court judgment. (Id.; Northrop Corp. v. Triad International
Marketing, SA (9th Cir. 1988) 842 F.2d 1154, 1156-1157
IV. MAKE THE RECORD
A. The appellate court considers only what is included in the formal record
sent to it by the county clerk, with the exception of matters which can be
judicially noticed.
1. The record generally includes:
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a. pleadings;
b. papers filed during litigation (e.g., motions, exhibits attached
thereto, orders, etc.);
c. reporter’s transcripts of proceedings;
d. trial exhibits.
2. Appellant must affirmatively show error upon an adequate record.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
3. The record must be adequate to permit the appellate court to
determine:
a. the issue;
b. that the issue was presented to the trial court (Doers v. Golden
Gate (1979) 23 Cal.3d 180);
c. how the trial court ruled;
d. the significance of the issue.
4. Judicial notice sometimes saves an insufficient record. (Evid. Code §
459.)
B. FRCP 50
In federal court, parties must raise issues in a motion for directed
verdict at the close of evidence in order to preserve the issue for a
post-trial motion for judgment as a matter of law. (FRCP 50.)
Otherwise the issue is waived. Trial counsel should take care to
remember this rule and raise all pertinent issues in the motion for
directed verdict, otherwise they will be confronted with the issue of
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waiver not only in their post-trial motion for JMOL, but on appeal as
well. Although the appellate court may review purely legal issues
raised for the first time on appeal, it will only do so if the pertinent
record has been fully developed, and its decision to do so is
discretionary. (Scott v. Ross (9th Cir. 1998) 140 F.3d 1275, 1283.)
C. Sovereign Immunity Defenses
In both state and federal court, the defense of sovereign immunity
is a jurisdictional question subject to appeal even if not raised
below. (County of Sacramento v. Superior Court (1972) 8 Cal.3d
479, 481; Hamilton v. United States (9th Cir. 1995) 67 F.3d 761,
763, fn. 3.) Nevertheless, trial counsel should make every effort to
address and develop all possible immunity defenses through law
and motion in the trial court.
D. Jury Instructions and Avoiding Invited Error
With respect to jury instructions, trial counsel should take care not
to “invite” error by requesting or failing to object to jury instructions.
However, where a party first makes appropriate objections which
are overruled, subsequent acquiescence in jury instructions given
that are defensive or precautionary in nature will not be viewed as
invited error on appeal. (Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 212-213.) Nevertheless, when the trial court decides
legal issues in a manner adverse to your client, counsel should not
assume that the record has been adequately preserved via
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objections and oppositions made in law and motion. Counsel
should still take care to state objections to jury instructions relating
to such issues, and even propose their own special instructions.
Making a clear record of objections at every stage will help one
avoid claims of “invited error” on appeal.
E. Motions for New Trial – CCP 657
1. Under Code of Civil Procedure section 657, the appellate court
cannot affirm a trial court’s order granting a new trial on the
grounds of (a) insufficiency of the evidence or (b) excessive or
inadequate damages unless the trial court has specified these
grounds in its order.
2. Code of Civil Procedure section 657 mandates that the trial court
not only specify the grounds for granting a motion for new trial in its
order, but it must also specify in writing its reasons for granting the
motion on each ground stated. Reasons given orally on the record
are insufficient. (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51,
62.) If the reasons are not specified in the order itself, the court has
only 10 days from the filing of the order to prepare, sign and file a
written specification of reasons with the clerk. If the court fails to
specify reasons, on appeal the new trial order will be held to be
defective and unsupported by the record. (Sanchez-Corea v. Bank
of America (1985) 38 Cal.3d 892, 901.) Trial counsel should be
vigilant about making sure the court fulfills its obligations in this
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regard, and keep in mind that it is the court who must prepare the
written specification of reasons (counsel may not prepare it for the
court’s signature).
V. NOTICE OF APPEAL AND DESIGNATION OF RECORD
A. State Court – Notice of Appeal
1. The Notice of Appeal must identify the order or judgment being
appealed and be signed by appellant or appellant’s counsel. (CRC,
rule 8.100.)
2. A separate notice of appeal is required for appealable post-judgment
orders rendered after appellant file a notice of appeal from the
judgment. Exception = where judgment awards routine (not
discretionary) costs/attorney’s fees but determination of the amount of
such costs/fees is made in a subsequent order, the notice of appeal
from the original judgment subsumes said subsequent determinations
of the amount and a separate notice of appeal is not required. (Grant
v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)
3. The notice of appeal is filed with the clerk of the superior court, and is
deemed filed on the date received (mailbox rule does not apply).
Normally, the notice must be accompanied by a filing fee (Gov. Code §
68926; CRC, rule 8.100.) and a deposit for preparation of the clerk’s
transcript.
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a. NOTE: Government entities and government employees acting in
their official capacities are exempt from the filing fee clerk’s and
transcript deposit requirements. (Gov. Code § 6103.)
4. The normal deadline for filing the notice of appeal is 60 days after a
party’s service or the clerk’s mailing of the Notice of Entry of Judgment.
(CRC, rule 8.104.)
a. If proper notice of entry of judgment is not given, for whatever
reason, the outside limit for filing a notice of appeal is 180 days
after entry of judgment. (CRC, rule 8.108.)
b. The deadline is extended by the superior court’s denial of certain
post-trial motions.
(1) Denial of a timely served and filed motion for new trial (either
expressly or by operation of law) extends the filing deadline by
30 days, subject to the 180-day outside limit. (CCP § 659;
CRC, rule 8.108.)
(2) Denial of a valid motion for JNOV (expressly or by operation of
law) extends the filing deadline by the earlier of 30 days after
mailing or service of the order denying the motion or 180 days
after entry of judgment. (CRC, rule 8.108.)
c. If one party has filed a timely notice of appeal, the deadline for all
other parties to file a subsequent notice of appeal from the same
judgment or appealable order is extended 20 days.
B. State Court – Designation of Record
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1. Reporter’s Transcript
a. Parties may designate particular proceedings, or all oral
proceedings in their entirety. Public entities are not exempt from
the costs associated with compiling the reporter’s transcript. (Gov.
Code § 6103.)
b. Appellants must file a notice of designation of the reporter’s
transcript with the superior court clerk within 10 days after filing the
notice of appeal. (CRC, rule 8.120.)
2. Clerk’s Transcript
a. Documents filed or lodged with the superior court.
b. Notice of designation of the Clerk’s Transcript must be filed within
10 days after filing the notice of appeal. (CRC, rule 8.120.) This
notice can be combined with the notice designating the reporter’s
transcript.
c. By stipulation, parties can substitute the entire superior court file for
the clerk’s transcript. (CRC, rule 8.128.)
d. Alternatively, the parties may proceed via a joint appendix which is
prepared by the parties rather than the clerk, and consists of copies
of the desired superior court documents. (CRC, rule 8.124.)
e. Public entities are exempt from paying for costs of compiling the
clerk’s transcript. (Gov. Code § 6103.)
C. Federal Court – Notice of Appeal
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1. Filing deadlines are set in FRAP 4, and are mandatory and
jurisdictional. The ordinary appeal deadline is 30 days after entry of
the appealed judgment or order on the district court docket. (Not from
the file date and not after notice of entry as in state court.) Where the
United States is a party, the deadline is 60 days after entry of the
judgment or order.
a. One party’s timely notice of appeal extends time for other parties to
appeal to the later of 14 days after the date of filing of the first
notice of appeal, or the normal time prescribed by FRAP 4(a).
b. Certain “collateral” orders and post-judgment orders do not merge
into the judgment and must be separately appealed within 30 days
after entry of the order on the docket.
2. Timely filing of certain post-trial motions automatically toll the time to
file the notice of appeal. FRAP 4.
a. Motion for judgment as a matter of law. FRCP 50(b).
b. Motions to amend judgment or make additional findings of fact.
FRCP 52(b).
c. Motions to alter or amend the judgment. FRCP 59.
d. In some circumstances, motions for attorney’s fees. FRCP
54(d)(2).
e. Motions for new trial. FRCP 59.
f. Motions for relief under FRCP 60 if the motion is served within 10
days after entry of judgment. FRAP 4(a)(4)(A).
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3. Interlocutory orders generally merge into the judgment once entered
and separate notices of appeal are not required, a single notice of
appeal from the judgment will subsume such orders.
a. Notice of appeal is filed with the district court clerk. FRAP 3(a)(1).
Filing fees and the appellate docket fee must be paid at the time
the notice is filed. FRAP 3(e).
b. Civil Appeals Docketing Statement should be filed with the notice of
appeal.
c. Notice should identify related cases pending in the court of appeals
and should have attached a Representation Statement (FRAP
12(b)).
D. Federal Court – Designation of Record
1. Burden of compiling record on appeal lies with the appellant. (FRAP
11(a).)
2. Record on appeal consists of:
a. official reporter’s transcript
b. clerk’s record of original pleadings, exhibits, etc. filed with the
district court
c. docket entries – a certified copy of the “docket sheet” which will be
sent to all parties by the district court.
3. The Ninth Circuit requires the parties to prepare excerpts of record
instead of the appendix prescribed by FRAP 30. (Circuit Rule 30-1.1.)
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4. Circuit Rules of 9th Circuit supercede provisions of FRAP 10 for
ordering transcripts and designating the record on appeal.
a. Deadline for ordering transcripts is 30 days after filing the notice of
appeal. (Circuit Rule 10-3.1(d).)
b. Appellant must give the parties notice of the portions of the
transcript he intends to order. The notice must also contain a
statement of issues the appellant intends to pursue on appeal.
(Circuit Rule 10-3.1(a).) This notice must be filed within 10 days of
filing the notice of appeal. Notice is not required if the parties agree
on the portions to be ordered, or if the entire transcript is being
ordered.
c. Appellants make payment arrangements directly with the court
reporter(s).
5. The Clerk’s Record remains in the district court for the parties’ use
during briefing. The parties are responsible for compiling the excerpts
of record (consisting of documents pertinent to the appeal) and
submitting that to the court of appeal.
6. Excerpts of Record must include (Circuit Rule 30-1.3(a)):
a. notice of appeal
b. the trial court docket sheet
c. the judgment or interlocutory order appealed from
d. any opinion, finding of fact or conclusions of law relating to
judgment or order appealed from
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e. any other orders or ruling sought to be reviewed
f. any relevant jury instructions
g. that portion of the reporter’s transcript pertinent to the issues
appealed
h. portions of exhibits necessary to resolve issues on appeal
i. any other documents necessary to resolution of issues on appeal
j. the final pretrial order, or if that does not set out the issues to be
tried, the final complaint and answer or pleadings setting forth those
issues
k. where appeal is from grant or denial of a motion, portion of
affidavits, exhibits etc that are essential to resolution of the issue on
appeal.
VI. MEDIATION ON APPEAL
A. Medication can be with a private mediator by stipulation or Court
supervised through the court’s program.
B. Court Mediators are certified by Court after training or employees of the
court.
C. Some period is offered free. Thereafter, as negotiated between mediator
and parties.
D. Typical procedure for court supervised mediation.
1. Suspension of certain rules upon filing civil notice of appeal.
a. Designation of record.
b. Payment of estimated costs to prepare record.
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c. If not selected for mediation, suspension of rules terminate.
(1) Calculate time for due dates from date specified in
notice from court.
d. If selected for mediation, but no success:
(1) Mediation coordinator sends notice terminating
suspension.
2. Court sends out Civil Case Information Statement with Civil Appeal
Mediation Statement.
a. Forms are completed by parties on appeal.
3. On the basis of those documents, court decides if case will be
selected for mediation.
a. If yes, Coordinator furnishes parties with information about the
mediator and the mediator receives the Mediation Statements.
4. Dates for mediation and pre-mediation conference are selected.
5. Attended by “all parties and their counsel of record.” If not an
individual, then the party representative with full authority.
a. Also attended by representatives of all involved insurance
companies.
E. Private mediation is often preferred.
1. The parties have a larger pool of mediators to select from.
2. Retired appellate court judges / justices are better suited than
others to mediate cases on appeal.
a. They are familiar with the process and standards of review.
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b. They bring the same perspective that the reviewing court will have
c. They command a high degree of respect and credibility.
3. Scheduling may be more flexible.
VII. SHOULD APPEAL BE REFERRED TO APPELLATE COUNSEL?
A. It is usually advantageous to retain appellate counsel.
1. Fresh point of view: new arguments and authority. Greater
objectivity.
2. Trial counsel can actually be too familiar with the case.
3. Appellate counsel has the same vantage point as Court of Appeal
(evaluation of case on bare record).
a. Distance and dispassionate view is an asset; no emotional baggage.
4. Appellate counsel is familiar with appellate procedures and standards.
5. Different skills required. Brief writing is more demanding at the
appellate level and more critical to the outcome. Trial work is more
visceral; appellate work is more academic.
B. When to retain Appellate Counsel.
1. The sooner the better.
2. May provide assistance during post judgment proceedings in trial
court.