Winter 2003
RECENT AND PROPOSED CHANGES WILL AFFECT PROSECUTION OF APPEALS AND LITIGATION
A number of changes have been made in 2002 to the California Rules of Court which affect the handling of appeals. Some of the changes are matters of form, while others effect substantive changes. There are also a number of existing rules which are underutilized. The use of these often-ignored rules can achieve more efficient and expeditious handling and resolution of appeals.
Rule 1 provides that a notice of appeal must be served and filed in the superior court to appeal to the court of appeal from a superior court judgment or an appealable order of the superior court. The revision to Rule 1 adds an explicit reference to appealable orders to ensure that litigants do not overlook the applicability of this rule to not just judgments, but also orders. Rule 1 continues the policy that the notice must be liberally construed to determine its sufficiency. The revised rule also provides that if there is a failure to pay the required filing fees, a clerk’s notice will be sent which must state that the appeal will be dismissed unless within fifteen days after the notice is sent, the appellant either pays the fee or files an application for a waiver based on an inability to pay the fees. The revised rule deletes the requirement under the former rule that the defaulting party had to pay the fees and show good cause as to why it had not previously been paid.
Pursuant to Rule 2, the time period to file an appeal remains the same, which is the earliest of (1) sixty days after the superior court clerk mails a document entitled notice of entry of judgment or a file-stamped copy of the judgment showing the date either was mailed; or (2) sixty days after the party filing the notice of appeal serves or is served by a party with a document entitled notice of entry of judgment; or (3) 180 days after entry of judgment.
Revisions have been made to Rule 3, which cover extensions of time to appeal. The revised Rule 3 provides various circumstances in which the time to appeal is extended. It is specifically noted that the rule operates only to increase any time to appeal, and it cannot shorten the time. As an example, if any party files and serves a valid notice of intention to move for a new trial and the motion is denied, the time to appeal from the judgment is extended for all parties until the earliest of: (1) thirty days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; (2) thirty days after denial of the motion by operation of law; or (3) 180 days after entry of judgment. Thus, if the time provided by Rule 3 would be less than the normal time to appeal, such as when a new trial motion is denied before notice of entry of judgment is given, the normal time set forth in Rule 2 of sixty days governs.
A substantive change to Rule 3 is set forth in subpart D concerning motions to reconsider an appealable order. This section provides if any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008(a), the time to appeal from that order is extended for all parties until the earliest of: (1) thirty days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; (2) ninety days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order. The former Rule 3 made no provision for an extension of time to appeal from an appealable order when a party filed a motion to reconsider. This led to different interpretations under case law. The change made in Rule 3 was intended to encourage recourse to the trial court for relief from an appealable order, such that if it is granted, it would obviate the need for an appeal.
The record on appeal can include several different components. The record of oral proceedings would be presented by reporters’ transcripts. Pursuant to Rule 4, within ten days after filing the notice of appeal, an appellant must serve and file a notice designating a reporter’s transcript or a notice of intent to proceed without a reporter’s transcript. Preparation of the reporter’s transcript by the court reporter or reporters who were assigned to the proceedings has often been a source of delay in the processing of appeals. It is often forgotten that the rule technically puts a time limit of thirty days to prepare the transcript, which can be extended only by the court of appeal. It is generally in the interest of the appellant to follow up periodically with the court reporter, court reporter’s office, or court of appeal regarding compliance by the court reporters who are preparing the transcript pursuant to Rule 4.
The other significant part of the appeal record is the clerk’s transcript, which includes documents which were filed with the court. Within ten days after filing the notice of appeal, an appellant must serve and file a notice designating the documents to be included in the clerk’s transcript. An alternative to the clerk’s transcript is to elect to proceed by way of an appendix by which the parties prepare a joint appendix or separate appendices including the necessary documents for a proper consideration of the appeal. The alternative election to proceed by appendix can be a means of expediting the appeal to avoid delays in the superior court in preparing a clerk’s transcript.
Newly revised rules also more clearly set forth that the parties (the appellant and respondent) may stipulate for a period of up to sixty days to extend the time to file any appeal briefs, including the appellant’s opening brief, respondent’s brief, and reply brief. This avoids the necessity of making applications or motions to the court of appeal to obtain additional time. The court of appeal cannot shorten any stipulated extension up to sixty (60) days. If additional time is needed beyond sixty days, it is necessary to file an application or motion with the court of appeal.
Another underutilized procedure is the use of a settlement conference on appeal which can be requested by the parties. The request for such a settlement conference will not delay the processing of the appeal, unless specifically requested by the parties and agreed to by the court.
Assembly Bill No. 2865 was approved by Governor Davis on September 19, 2002, and filed with the Secretary of State on the same date, to be effective in January 2003. This Bill would add Code of Civil Procedure section 166.1 relating to appeals. This section would provide that upon the request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.
There is other recent, significant legislation affecting civil procedure which has been approved and effective on January 1, 2003. Senate Bill 688 was introduced to address issues in the aftermath of the September 11 terror attacks. Concern was raised regarding victims of the terrorists’ actions of September 11, 2001, who had to choose between litigation and federal remedies within one year, while residents of other states had more than twice as long to pursue their remedies. For a number of years, California has had a one-year statute of limitations which applied to personal injury and wrongful death matters. This was set forth in Code of Civil Procedure section 340(3).
The extension of the statute of limitations from one year to two years will affect all personal injury and wrongful death claimants. On January 1, 2003, Code of Civil Procedure section 335.1 will be effective, which provides: “[W]ithin two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”
Code of Civil Procedure section 340 will also be amended. It will drop out reference to injury or death from wrongful act or neglect. It will still provide a one-year statute of limitations in an action for libel, slander, or false imprisonment. Code of Civil Procedure section 340.10 will be added effective January 2003 which will make the application of the two-year statute of limitations retroactive for “terrorist victims,” such that whether that action lapsed or was otherwise barred by time under California law predating the passage of the new section, the new two-year statute of limitations will apply.
I anticipate that the retroactivity of other aspects of the two-year statute of limitations will ultimately lead to further interpretation through case law. The legislative counsel, in its discussion of the new section, notes that, under current law, victims of personal injury and wrongful death are now required to file lawsuits within a year in order to meet unduly “short” statutes of limitations. Many such matters would be resolved without the need to resort to litigation if California’s statute of limitations permitted such actions to be filed within two years, as the vast majority of other states provide for a longer time to resolve claims short of litigation. The longer statute of limitations could lead to matters resolving more informally without the resort to formal litigation.
Another significant change effective in 2003 is to increase the notice requirements on a motion for summary judgment from twenty-eight to seventy-five days. This means that if a notice of motion for summary judgment is filed and personally served, the hearing date cannot be sooner than seventy-five days after the filing date. Oppositions are still due fourteen calendar days before the hearing and replies are still due five calendar days before the hearing. The rationale for the change is to allow additional time to complete discovery and adequately brief the issues because of the drastic nature of summary judgments. Even with the extended notice requirements, summary judgment or summary adjudication motions are still valuable tools to limit or terminate litigation matters.
On the whole, the above-mentioned changes should provide for more effective and efficient means to prosecute litigation and appeals, at the same time allowing more meaningful opportunities to resolve legal disputes.
KEVIN J. STACK
Mr. Stack is a Director with the firm’s appellate
group.
Email: kjs@kpclegal.com.
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