Memorial Time March 26 After Sundown Same Date As Deadline For Appeal Child Molestation Case Agianst Watchtower Corporation (Synchonicity) (page 3)

Blueeyes54

Gods eyes are everywhere. They cannot hide. He will see they pay the piper.

frankiespeakin

http://www.ehrlichfirm.com/articles-briefs/basics-of-california-appeals.html

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

Success on appeal in California depends on many things — the facts that underlie your case, the legal positions you can take in light of the state of the law, your skill in selecting and presenting the issues to the appellate court in a persuasive way, and the beliefs and proclivities of the appellate judges who will hear your case. But before any of these factors can have an impact on the appeal you plan to bring, you must first satisfy the most elemental aspects of any appeal — you must get the appeal on file timely, and you must provide the court with an appropriate record for appellate review. Unless you can accomplish these two basic tasks your appeal will fail. This article will explain how to satisfy these most basic of appellate rules.

The rules governing filing appeals and designating the record are technical, and involve some deadlines that are jurisdictional. This article provides an overview, but before any lawyer tries to file and proceed with an appeal, he or she should carefully review the relevant sections of the California Rules of Court, and would do well to consult an appellate treatise (or an appellate lawyer.) It’s not exactly a “don’t try this at home” situation; more like, “don’t try this without making sure you do it right.” The problem is not that it is particularly hard to comply with the rules; it is that if you fail to do so, for whatever reason, the result can be catastrophic for the case.

Rule 1: File the notice of appeal on time

Many of the deadlines built into the law have a certain amount of flexibility. If good cause exists, the failure to meet the deadline can often be excused under section 473 of the Code of Civil Procedure, or its equivalent provisions in the California Rules of Court. Rule 8.60(d) of the Rules of Court allows a reviewing court, for good cause, to relieve a party from default from any failure to comply with the rules — “except the failure to file a timely notice of appeal.” Likewise, 8.104(b) states that no court can extend the time to file a notice of appeal, and that “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” The only exception to this is when there is a declared public emergency, such as a fire or an earthquake. (CRC, Rule 8.66.)

The timely filing of a notice of appeal is a jurisdictional prerequisite. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) Accordingly, “unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (Id.) Don’t get too excited about the concept of a “constructively filed” notice of appeal. That rule only applies in appeals by self-represented litigants in criminal custody, and holds that their appeals are deemed constructively filed when presented to the prison authorities within the normal deadline for filing an appeal. (See, e.g. Silverbrand, 46 Cal.4th at pp. 114 -120 [detailing history of prison-delivery rule and applying it to civil appeals as well as criminal cases].)

Filing the appeal timely does not sound so hard, and it often is not. But it can be tricky in some cases for two reasons: (1) it is not always clear what orders are appealable and what orders are not; and (2) the deadlines themselves are sometimes less than straightforward.

How to comply with Rule 1, Step 1— Know what to appeal

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy.” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)

The flip side of the one-final judgment rule is Rule 1, above — that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”)§ 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)

The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.
There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.

The most common appealable orders listed in section 904.1 are these:

From a judgment
From an order after final judgment (such as an order awarding attorney’s fees post-trial)
From an order granting a new trial, or denying a motion for judgment notwithstanding the verdict
From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction
From a sanctions order directing the payment of more than $5,000
From an order granting or denying an “Anti-SLAPP” motion under Code Civ. Proc. section 416.26
From an order appointing a receiver
From an order granting a right-to-attach order or discharging or refusing to discharge an attachment.

......

Rule 2: Provide the reviewing court with a sufficient record

A. What is “the record?”

Errors are not presumed on appeal; to the contrary, appealed judgments and orders are presumed correct, and the burden lies with the appellant to overcome this presumption and to demonstrate error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)

“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. The County of Merced (2003) 110 Cal.App.4th 362, 364.)

The “appellate record” is the aggregate information provided to the reviewing court that will allow it to determine whether or not the court below committed error that warrants some kind of intervention. It is comprised of two components: the oral proceedings before the trial court, which have usually been transcribed verbatim by the court reporter; and a compilation of the relevant documents submitted to the trial court. These documents include pleadings, motions, and supporting evidence (either admitted, or rejected).

Oral proceedings are usually transcribed by the court reporter, who will put them into a reporter’s transcript (“RT”). In rare circumstances, when an RT is not available, the parties will either have the trial court determine what occurred (a settled statement) or provide an agreed statement of proceedings. (See, Civil Appeals § 4:12 et seq.)

The two most common ways to provide the reviewing court with the trial court documents are a Clerk’s Transcript (“CT”), prepared by the Superior Court Clerk using a designation submitted by the parties, or an Appendix in lieu of a Clerk’s Transcript — essentially the same thing, but prepared by the parties.

The three most common choices for the record on appeal:

Both the RT and the Clerk’s Transcript;
Both the RT and an Appendix in lieu of Clerk’s Transcript;
Only an Appendix or Clerk’s Transcript.

frankiespeakin

http://www.ehrlichfirm.com/articles-briefs/basics-of-california-appeals-5.html

2. Judgment calls — what should you include?

You must include everything necessary for the appellate court to understand what occurred in the trial court, and to evaluate whether it constituted an error, and whether that error was prejudicial. As the appellant, if you fail to provide the appellate court with this information, you will lose the appeal. You should not, however, burden the court with more than it needs to do its work properly. In extreme circumstances, lawyers who thoughtless include more in the record than properly belongs there can be subject to sanctions. (Rule 8.276(a)(2).)

The rules specify certain items that must be included in every Clerk’s Transcript, whether designated or not, and which must therefore also be included in any appendix in lieu of a clerk’s transcript. These include the notice of appeal; the order or judgment appealed from and any notice of its entry; any notice of intention to move for new trial, JNOV, or reconsideration of an appealable order, together with their supporting and opposing memorandum and exhibits, and any order thereon; notices or stipulations concerning preparation of the reporter’s transcript; and the register of actions, if there is one. (Rule 8.122(b)(1); 8.124(b)(1)(A).)

If your appeal follows the trial court granting a demurrer or a summary-judgment motion, deciding what to include in the record is easy — you put in the operative pleadings, all documents filed by the parties in support of, or opposition to, the motion or demurrer, and the order resolving the motion or demurrer. If the appeal follows a jury trial, it can be harder to decide what to include. Although all exhibits are automatically part of the record, it makes sense to include the key exhibits in the CT or Appendix so the court has ready access to them. All minute orders entered during the trial are also a good idea, because they show what happened each day, and sometimes may be the only evidence of orders the court made.

Memorial Time March 26 After Sundown Same Date As Deadline For Appeal Child Molestation Case Agianst Watchtower Corporation (Synchonicity)

Blueeyes54

frankiespeakin

Rule 1: File the notice of appeal on time

How to comply with Rule 1, Step 1— Know what to appeal

Rule 2: Provide the reviewing court with a sufficient record

A. What is “the record?”

frankiespeakin

frankiespeakin

mind blown

frankiespeakin

wha happened?

frankiespeakin

frankiespeakin

Splash

Share this