Anatomy of an Appeal – What to expect

Disclosure: this is a general outline of a typical proceeding on appeal. Proceedings may vary: parties may file various motion or applications or court of appeal may ask for briefing on procedural matters or legal issues. In addition, parties may seek extensions of time. This general outline of a typical proceeding on appeal does not apply to writ petitions. Appeals can typically take 1-2 years from start to finish. Your appeal may differ!

1. Determine whether the order or judgment is appealable and file the notice of appeal in the superior court. (see code of civil procedure (ccp) §904.1, fam.Code §2025; prob.Code §§1300, 1301, 1302, 1302.5, 1303, 1304; corp.Code §2000; civil code §1714.10 (attorney conspiracy); ccp §703.600 (exemption of property from levy); gov.Code §946.6 (denial of petition for leave to file late claim under tort claims act).)

2. In a family law matter, seek certification of the issue from the trial court. (rule 5.392(b)(1), (2).) trial court’s denial of certification may be reviewed by extraordinary writ. (rule 5.392(g).) determine whether a motion to the court of appeal is required to obtain permission to appeal (rule 5.392.). Denial of motion to appeal is reviewable by petition to the supreme court. (rule 5.392(e)(4).

3. Determine whether stay of enforcement of the superior court’s judgment is appropriate.

4. If applicable, seek a stay of enforcement of judgment in the superior court pending resolution of appeal or, if respondent, post the appropriate bond where necessary. In a family law case, matter is stayed upon appellate court’s granting of motion to appeal. (rule 5.392(b)-(c).)

5. Except in family law matters, file notice of appeal in superior court (with request for stay of judgment, if applicable and if superior court denies stay).

6. Elect whether to have the superior court prepare the record or prepare an appendix on appeal.

7.Order the reporter’s transcript.

8. Either prepare the appendix or await filing of the record by the superior court.

9. Opening brief is filed (usually within 40 days of filing the reporter’s transcript. Rule 8.212(a)(1)

10. Respondent’s brief is filed (usually within 30 days of filing of the opening brief. Rule 8.212(a)(2)

11. Reply brief is filed (usually within 20 days of the filing of respondent’s brief. Rule 8.212(a)(3))

12. Request oral argument when clerk sends waiver.

13. Oral argument.

14. Decision issued.

15. Upon receiving decision, determine whether to petition for rehearing or request publication of decision; determine whether to petition for review by supreme court.

16. File cost memorandum where appropriate; seek an award of attorney’s fees if applicable.

17. If no petition for rehearing or petition for review, remittitur issued by appellate court clerk, restoring jurisdiction to trial court