Download - Public Entities on Appeal: Important Issues · 2. In Federal court post judgment interest rate based on T-bill. a. Post judgment interest on a judgment in federal court calculated

Public Entities on Appeal:

Important Issues

GEORGE E. MURPHY

MURPHY, CAMPBELL, GUTHRIE & ALLISTON A PROFESSIONAL LAW CORPORATION

Murphy, Campbell, Guthrie & Alliston - 2 - www.murphycampbell.com

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.


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.


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.


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.


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.


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


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


“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.)


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:


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


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


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


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.


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


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


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).


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.)


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


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.


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.


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.