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Table of Contents    Cover    MCLE Test

MCLE Article and Self-Assessment Test


On to a Higher Court

The outcome of an appeal will often depend on important strategic decisions that must be made soon after filing the notice of appeal 

By Richard H. Nakamura Jr. 

Richard H. Nakamura Jr. is an appellate attorney in the Los Angeles office of Morris, Polich & Purdy, LLP. He is the 1999-2000 chair of the Los Angeles Lawyer Editorial Board.

The story, in its latest version, goes something like this: one neighbor sued the other for the usual Los Angeles peccadilloes-waterfall in the koi pond making too much noise, lemon tree overshading the heirloom tomato garden, and wind chimes thrashing out haphazard notes that triggered repressed anxiety about high school band practice. Plaintiff neighbor had to leave town before the end of the case, so he asked his lawyer to e-mail word of the verdict. After several days, his attorney sent the following message: "Justice has triumphed." The client e-mailed back: "Appeal immediately!"1 

The lawyer-after determining that the appeal would not be frivolous2-obliges. Now what? 

Experienced practitioners know that the filing of a notice of appeal is more than a jurisdictional event. It ups the ante for everyone involved in the litigation and triggers consideration of a whole new set of factors, including the time required to pursue the appeal, the cost of the appeal, whether to cross appeal, judgment enforcement issues, and renewed settlement options. 

Clients, in turn, have many practical questions: how long will the appeal take? Can we speed it up? What are my chances? What about money? Can the judgment be enforced now? Can enforcement be delayed until a final judgment is reached? How can I possibly pay to defend this judgment on appeal after a trial that emptied my bank account-and must we go through a full-blown appeal to end the case? These questions are important and must be answered either before or very soon after the filing of the notice of appeal.3 

Statistics published by the Judicial Council of California this year provide an insight into the time it takes to decide a nonpriority civil appeal and the likelihood of reversal. In recent years, the affirmance rate for civil appeals in the various districts of the California Court of Appeal has been approximately 75 percent affirmances in full or with modifications. Approximately 21 percent of civil appeals are reversed; 3 percent are dismissed.4 The high affirmance rate reflects the general presumption in favor of judgments and the application of standards of appellate review that, in most cases, mandate a limited scope of appellate inquiry. Sometimes the best service counsel can offer is to nudge the client from an "appeal immediately!" mind-set to one of "let's just cut our losses." 

The Judicial Council's data also afford a baseline from which to predict how long an appeal will take. The statewide median time from the filing of a civil notice of appeal to issuance of an opinion was 516 days (1.4 years) in 1997-98.5 Ninety percent of the civil appeals were decided within 995 days (2.7 years) after the notice of appeal.6 The remaining 10 percent took more than 2.7 years to obtain an opinion from the court of appeal. (See "Predicting the Length of an Appeal" on this page.) 

What if the client cannot wait that long? 

Cutting in Line 

Various statutes expressly authorize appellate calendar preference for certain types of appeals.7 Appellate preference generally means the case will get to oral argument quickly. Motions for appellate preference must be filed no later than the last day for filing the appellant's reply brief.8 (Caveat: It would be inconsistent for counsel to delay briefing by seeking several time extensions and then ask for calendar preference.) Civil appellate preferences are subject to the priority afforded criminal proceedings.9 

Appellate preference can be express or implied. Code of Civil Procedure Sections 44 and 45, for example, grant appellate preference to certain types of cases: Section 45, to appeals from judgments terminating parental rights; Section 44, to appeals in probate proceedings, contested election cases, and actions for libel or slander by a person who either holds elective public office or was a candidate for office when the alleged defamation occurred. Less common appellate preference statutes are scattered throughout the codes.10 

Some statutes afford preference in "all courts" or "all proceedings" in which the statute is at issue, thus implying that appellate proceedings are included in the statutory grant of calendar preference.11 In Warren v. Schecter, for example, the court of appeal granted preference to a seriously ill appellant by analogizing to Code of Civil Procedure Section 36, the trial-setting preference statute.12 Section 36 affords trial-setting preference when a party suffers from an illness or condition raising "substantial medical doubt of survival" beyond six months, or when a party is more than 70 years old, has a "substantial interest in the action as a whole," and whose health "is such that preference is necessary to prevent prejudicing the party's interest in the litigation." 

The Warren appellant-a plaintiff at trial who won a substantial jury verdict-explained that due to the filing of the notice of appeal and the posting of an appeal bond by the defendant/respondent, she was unable to rely on the judgment to pay any portion of her medical care costs. In addition, she had already sold a portion of the judgment, but the proceeds ($250,000) had already been depleted.13 Her treating physician also provided a supporting declaration stating that without the funds for proper medical care, the appellant probably would die within six months. The court of appeal, relying on Code of Civil Procedure Section 36 to grant the calendar preference, stated, "Clearly, the interests of justice dictate that a litigant who may not survive the delay of an appellate court backlog be afforded calendar preference."14 

Analogizing to Warren, counsel could argue that if a trial setting preference is applicable to a case, an appellate preference should apply as well. Civil matters entitled to statutory trial preference include: 

  • Wrongful death or personal injury actions involving a party under the age of 14.15           
  • Child custody proceedings.16           
  • Damage actions arising out of the defendant's commission of, and conviction for, a felony.17           
  • Petitions to confirm, correct, or vacate judicial arbitration awards.18           
  • Defense challenges to ex parte writs of attachment.19           
  • Election matters involving voter registration and certification of candidates and ballot measures.20           
  • Eminent domain actions.21           
  • Injunctions seeking to restrain and prevent illegal expenditure of, waste of, or injury to, the funds or property of a public entity.22           
  • Validation proceedings brought by or against a public agency.23

Notwithstanding the absence of an analogous trial preference statute, an appellate court may grant calendar preference under its inherent power to control the calendar. The court of appeal thus may grant preferences upon any "appropriate showing,"24 including, as happened in one case, the fact that another related case was soon to be tried in superior court.25 Counsel should exercise care, however, in deciding to use the request for calendar preference because the request, if granted, may have an adverse impact on the choices that will be made later in the case. In one unusual matter, on the last court day before oral argument, the party that had previously sought appellate preference moved to dismiss the appeal because the case had settled. The court of appeal declined to dismiss the appeal, noting that "[n]o explanation was offered for the delay (there is nothing to explain why we were not advised early that settlement discussions were underway), and no apology was made for unnecessarily bumping other cases…."26 

The motion for appellate preference assumes there is a final judgment disposing of all causes of action between the parties. Absent the final judgment, some attorneys attempt to secure immediate appellate review of interlocutory orders via stipulations to appeal.27 Unlike the motion for preference, the stipulation for appeal does not attempt to cut in front of other cases for oral argument but, instead, is a device to simply get in the appellate line early on. The so-called stipulated appeal is disfavored.28 

Preparation of The Written Record 

The traditional method for placing the relevant trial court pleadings, motions, and evidence before the appellate court is to designate, under Rule 5 of the California Rules of Court, that a clerk's transcript is to be compiled by the superior court clerk's office. The contents of the clerk's transcript must be designated within 10 days after filing the notice of appeal-a time frame that often results in counsel being either overinclusive or underinclusive in the designation due to either unfamiliarity with the file or simple uncertainty as to what the pertinent appellate issues will be. The clerk's transcript costs 72 cents per page to the appellant and 22 cents per page to the respondent for the respondent's copy. 

By court rule, the clerk's transcript must be completed within 30 days after the initial deposit is made.29 In practice, however, the time varies significantly depending upon the current backlog in the clerk's office, and counsel should not expect a transcript in 30 days. Moreover, preparation of transcripts for criminal appeals take precedence over transcripts for civil appeals. In the Second District, it is not unusual to wait five to six months-or even longer-for a clerk's transcript.30 

In view of the delays in obtaining clerk's transcripts, the increasingly preferred method for creating the record of documents on appeal is for counsel to prepare a separate or joint appendix in lieu of the clerk's transcript, pursuant to Rule 5.1 of the California Rules of Court.31 The 5.1 appendix is prepared by the attorneys and evolves as the briefs are being written. A joint appendix, prepared cooperatively by counsel for the appellant and the respondent, is filed with the respondent's brief. An appellant's appendix is filed with the appellant's opening brief; the respondent's appendix is filed along with the respondent's brief; and a reply appendix may be filed by the appellant with the reply brief.32 Due to the time required by counsel or a paralegal in preparing the appendix, the savings in copying costs afforded by the appendix may be offset by the hourly rate charged by the attorney or paralegal who compiles the appendix. 

Effective July 1, 1999, Rule 5 governing the clerk's transcript has been amended to provide that the designation of a clerk's transcript is due within 10 days after the notice of appeal is filed "unless the appellant or any other party has served and filed a notice of election to proceed [via appendix] under Rule 5.1."33 The Judicial Council is considering disposing of the clerk's transcript altogether and requiring parties to use the appendix procedure.34 

Cross Appeal? 

In some situations, a "protective" cross appeal must be filed to protect the client who under the original judgment had lost but, on subsequent posttrial motions (namely, motions for new trial or to vacate a judgment), succeeded in overturning the original adverse judgment. The cross appeal must be filed because if the order granting the new trial or vacating judgment is reversed on appeal, the original judgment will be reinstated unless that original judgment is brought up via the cross appeal. In other words, absent the protective cross appeal, an original adverse judgment springs back to life if, on appeal, the posttrial motion that vacated that original adverse judgment is reversed.35 

The notice of cross appeal can be filed at the latest of either 20 days after the clerk mails notice of the first appeal or within the time remaining under the first appeal.36 The notice of cross appeal can be filed at least 20 days after the clerk sends notice of the first appeal-or more, depending on when and under which provision the first notice of appeal was filed. 

Lawyers who attempt to manipulate these deadlines in order to usher an untimely appeal through the back door usually meet with failure. For example, an otherwise untimely appeal from a judgment cannot be saved by waiting 20 days after the opposing side has filed a timely appeal from a postjudgment order (for example, a postjudgment order on attorney fees) and then filing a "cross appeal" challenging the judgment. Rule 3(c) generally provides that if a timely notice of appeal is filed, then any other party may file a notice of appeal within 20 days, but this provision only reopens the time for another appeal from the same order or judgment as the first appeal.37 

Thus, if the postjudgment order that counsel wishes to challenge on appeal is not incidental to the judgment, a separate, independent appeal must be filed from such an order. In Fish v. Guevara, for example, the court held that a discretionary award of expert witness fees pursuant to Code of Civil Procedure Section 998 is not incidental to a judgment and cannot be reviewed on an appeal from the judgment. "An award of expert witness fees must be challenged by a timely notice of appeal therefrom. Plaintiff's notice of appeal from the judgment did not create appellate jurisdiction over the trial court's subsequent award of expert witness fees."38 

Another reason for a cross appeal is that by virtue of filing a one, the initial expense of preparing the record is borne equally by all parties, unless the superior court orders otherwise.39 Also, the deadline for the completed record is the deadline for filing the record in the latest appeal.40 

Stopping Immediate Execution of a Judgment 

The filing of a notice of appeal generally does not stay enforcement of a money judgment. The statute stating that the perfecting of an appeal stays enforcement is subject to so many exceptions-notably, the enforcement of judgments or orders for the payment of money is not stayed on appeal-that this is truly an example of the exceptions swallowing the rule.41 

To avoid an immediate execution on a judgment, the judgment debtor has several stay options, both short and long term. A short-term stay affords some breathing space for the client to weigh the advantages and disadvantages of an appeal, explore postjudgment settlement options, prepare postjudgment motions, or simply gather the funds needed to post a bond. 

In the short term, the client can attempt to secure one among several options: 

  • A stipulation for a stay, based on either a partial or complete waiver of the bond.42           
  • A trial court order for a temporary stay. On a money judgment, absent a showing of indigency and the consent of the respondent, the trial court may grant a stay not to exceed beyond 10 days after the last date to file a notice of appeal.43           
  • A writ of supersedeas from the court of appeal.44

Note that in Los Angeles County, ex parte applications to stay execution of a judgment are not permitted unless the application includes a stipulation to stay execution.45 

The writ of supersedeas is not only the last option on the list but also in practice. The supersedeas writ is designed to protect the status quo pending appeal; thus, it prevents enforcement of the judgment pending appeal. Accordingly, the supersedeas writ requires the prior or concurrent filing of a notice of appeal.46 Further, a petitioner must first attempt to obtain a stay from the trial court and must demonstrate either exhaustion or lack of alternative remedies.47 

While these procedures can stop actual enforcement of the judgment, they do not preclude an aggressive judgment creditor from conducting postjudgment discovery to further the execution process in all circumstances. For example, if enforcement is stayed by an undertaking or a bond, interrogatories to the judgment debtor are stayed as well.48 But if the stay is not based on the posting of a bond but the result of, say, a court order or a stipulation, then the trial judge may permit the judgment creditor to propound written interrogatories to the judgment debtor.49 The same rule applies to inspection demands: if enforcement of the judgment is stayed by the posting of a bond, inspection demands to the judgment debtor are stayed as well-but if enforcement is stayed by anything other than the posting of a bond, then the trial court may permit the issuance of inspection demands to the judgment debtor.50 

An appeal may be dismissed if the judgment debtor willfully fails to comply with a trial court order requiring answers to postjudgment interrogatories.51 Postjudgment interrogatories are designed to secure information about a judgment debtor to aid in the enforcement of a money judgment.52 Failing to attend a judgment debtor examination may result in the dismissal of the appeal.53 

Bonds and Deposits in Lieu of Bonds 

Assuming that a temporary stay is not available, not obtained, or is about to expire, the next step to prevent enforcement of the judgment is to post a bond or other security. When considering a bond, counsel must evaluate three issues: 

  1. Is a bond required for the particular order or judgment being appealed?           
  2. If so, in what amount must the bond be written?           
  3. How much will the bond cost?

Bond rates vary typically between 1 and 2 percent of the bond's value.54 

The bond must cover the amount of the judgment or order directing payment "together with any interest which may have accrued pending the appeal and entry of the remittitur, and costs which may be awarded against the appellant on appeal."55 The bond must also include costs awarded by the trial court under Code of Civil Procedure Section 1021.56 Determining which costs must be bonded can by intricate and difficult-especially if the judgment is solely for attorney's fees awarded as costs. 

In 1993, the legislature added a series of bonding provisions to Code of Civil Procedure Section 917.1. Under Section 917.1, a judgment awarding expert witness fee costs pursuant to Code of Civil Procedure Section 998 requires a bond. (Section 998 allows a trial court to order a party to pay its opponent's expert witness fees if the party rejects an offer to compromise and thereafter fails to obtain a more favorable judgment.) Also requiring a bond on appeal are costs awarded under Code of Civil Procedure Section 1141.21.57 (Section 1141.21 authorizes costs following a trial de novo after a judicial arbitration that does not result in a more favorable judgment.) However, a judgment that is "solely" for costs awarded under Code of Civil Procedure Section 1021 need not be bonded under Section 917.1.58 

The year prior to these amendments, the California Supreme Court in Bank of San Pedro v. Superior Court held that "nonroutine" costs, such as expert witness fees awarded under Code of Civil Procedure Section 998, must be bonded.59 Bank of San Pedro pointed out that the court of appeal had "correctly explained that '[e]xpert witness fees, like attorneys' fees, are not ordinarily a part of costs awarded at trial.'"60 Thus, if a judgment is solely for attorney's fees awarded as costs pursuant to Code of Civil Procedure Section 1021, Bank of San Pedro can be cited for the proposition that such a judgment must be bonded because the award for attorney's fees is a nonroutine cost. On the other hand, amended Section 917.1 does not require a bond to stay a judgment for "costs only" under Section 1021.61 

If the bond comes from an admitted surety-defined, in general, as an insurer licensed to transact surety insurance in California62-the amount of the bond must be one and one-half times the amount of the judgment or order.63 If the bond is established by nonadmitted sureties, the amount of the bond must be twice the amount of the judgment or order.64 

The judgment debtor may also make a deposit with the superior court in lieu of a bond. (Note that in Los Angeles County, a court order is required to authorize and direct the clerk to accept the deposit.65) The Code of Civil Procedure lists qualifying deposits, which include cash, bearer bonds, and certificates of deposit.66 The deposit must be for one and one-half times the amount of the judgment.67 Interest earned on the deposit is payable to the principal (typically the judgment debtor).68 The judgment debtor's deposit earns interest just as the judgment creditor's judgment accrues interest. Interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment that remains unsatisfied.69 

In limited circumstances, a trial court can waive the bond requirement. If the judgment debtor is "indigent and is unable to obtain sufficient sureties, whether personal or admitted," the bond may be waived.70 Some statutes eliminate the appeal bond in actions in which it can generally be assumed that the appellant would be unable to either post a bond or obtain a surety.71 

A judgment creditor, as respondent on appeal, may also waive the bond requirement of the debtor appellant.72 If there is a high probability of reversal, it behooves the respondent to consider waiving the bond because the cost of an appeal bond is generally recoverable.73 In rare situations, a trial judge may disallow recovery of the cost of the bond on the basis that the bond was "unnecessary"74-a term that does not apply simply because there were alternative procedures that could have been used to stay enforcement of the judgment.75 

The appeal bond protects the judgment debtor from immediate execution of the judgment. The flip side-protecting the judgment creditor-is the partial sale of the judgment by the judgment creditor to fund the appeal. In recent years, a mechanism has developed to help the respondent-the judgment creditor-secure funding to defend the judgment on appeal by selling a portion of the judgment. (This situation is very different from the more well-established practice of judgment creditors selling or assigning their judgments in the absence of an appeal because, among other reasons, the judgment creditor wants immediate cash and has neither the time nor the resources to locate and liquidate assets of a judgment debtor who has elected not to challenge the judgment on appeal.) Companies such as Judgment Purchase Corporation (or JPC, soon to be called Law Finance Group, Inc.) and General Electric Capital Corporation buy a minority interest in money judgments for immediate cash.76 The purchase typically is without recourse, so if the appeal is lost, the judgment creditor owes the purchasing company nothing. The cash infusion following a lengthy and expensive trial can substantially enhance a judgment creditor's financial circumstances by enabling the judgment creditor to resist an unfavorable settlement offer and to retain competent appellate counsel-either the same attorney who prevailed at trial or an experienced appellate practitioner or certified specialist. 

Because purchasing an interest in a judgment is an investment for these companies, counsel should anticipate fairly strict qualifying criteria. JPC, for example, requires that 1) the state or federal trial court judgment on appeal is equal or exceeds $300,000, excluding interest and costs, 2) the judgment debtor has deep pockets or has posted an appeal bond or other financial undertaking sufficient to assure full payment of the judgment if it is sustained on appeal, 3) the judgment creditor will vigorously defend the judgment, 4) the funds will be used to pay for qualified counsel, and 5) the amount assigned to JPC will not exceed 50 percent of the judgment.77 While JPC emphasizes that control of the appeal remains with the client and his or her attorney, it typically requires that the appellate team include the trial lawyer and an experienced appellate specialist "to encourage a fair settlement offer and to enhance the chances of success on appeal." The company does not select or engage the appellate specialist-that task is left to the client and the client's trial counsel. 

Appellate ADR? 

If the client wants to avoid the costs and delay of traditional appellate litigation altogether, some form of appellate alternative dispute resolution should be considered. By rule in many appellate districts, court-sponsored settlement programs must be considered very early in the appeal process. The Second Appellate District in Los Angeles, for example, has a voluntary settlement program conducted prior to the time the record is required to be filed.78 Notice of the availability of a settlement conference is sent by the superior court to the appellant upon the filing of a notice of appeal. All parties must agree to participate. The conference is conducted at the court of appeal by a volunteer attorney. 

In contrast, Division Two of the Fourth Appellate District (Riverside) also has a volunteer attorney mediator program, but participation is determined by the court of appeal. The presiding justice (or acting presiding justice) screens the docketing statement and assigns about 30 percent of the cases to the settlement program. Once selected, participation is mandatory.79 Counsel may also make a request, either before or after briefing, to be considered for inclusion in the settlement program.80 Mediators specializing in the area of law involved in the appeal are matched with the case. 

Division One of the Fourth Appellate District (San Diego) has both a mandatory and a voluntary settlement program.81 If the court selects the appeal for participation in the mandatory settlement program, counsel is required to complete a questionnaire that will be used by the settlement judge to conduct an initial conference call to determine whether a full-blown settlement conference is warranted. The conference call and the settlement conference itself are conducted by a judge, not an attorney. 

The voluntary settlement conference program in San Diego requires a written request from the parties; however, if the appeal involves more than two parties, settlement procedures will proceed upon the request of any two opposing parties. Settlement procedures can be initiated prior to the filing of any brief or up to 30 days after the final brief is filed. Upon receiving a stipulated settlement conference request, the presiding justice will appoint a settlement justice. Parties stipulating to a settlement conference may request a particular justice to serve as the settlement justice. 

Division Three of the Fourth Appellate District (Santa Ana) also invites parties to stipulate to a settlement conference. Based on the stipulation, the court will "normally order" a conference. If the stipulation is filed within 15 days after the invitation, the parties may designate in the stipulation which justice of Division Three should preside at the conference. Even without a stipulation, a party may request a settlement conference by completing the Settlement Conference Information Form that is mailed to counsel when the clerk receives notice of the filing of the notice of appeal.82 

Local rules also govern appellate settlement conferences in the First Appellate District (San Francisco),83 Third Appellate District (Sacramento),84 Fifth Appellate District (Fresno),85 and the Sixth Appellate District (San Jose).86 

Nothing in the rules or procedures of any district precludes parties from retaining a private mediator, such as a retired court of appeal justice, to resolve their appellate dispute. The mediator may command a fairly high hourly rate; however, some parties prefer the quick and confidential resolution attained by using a known and trusted mediator whose schedule is more accommodating to the parties. 

If the appeal settles, the appellant, according to the court rule, must "immediately" give the reviewing court written notice of the settlement.87 The appellate court can then order the appeal dismissed upon the appellant's request, the parties' stipulation, or the court's own motion.88 If the case settles before the record is filed in the court of appeal, the appellant files a notice of abandonment in the superior court, which immediately restores jurisdiction in the superior court.89 

If the settlement includes a provision for a stipulated reversal, follow-up motions must be filed to secure it.90 Current case law creates a general presumption favoring stipulated reversals,91 but the concept is subject to much controversy and debate-and the law may change. Under Assembly Bill 1676 an appellate court would be precluded from reversing or vacating a judgment upon the parties' agreement without making two specific findings: 1) that there is no "reasonable probability" that the interests of nonparties or the public will be adversely affected by the reversal, and 2) that the reasons for the requested reversal "outweigh the erosion of the public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement." 

Appellate litigation may be unfamiliar terrain; many contingencies hover on the horizon in the immediate aftermath of a judgment. In assisting their clients, counsel are faced with predicting how long an appeal will take, deciding what strategies to use to expedite the procedure, assessing the likelihood of success, whether to cross-appeal, suggesting means of financing, and determining whether the judgment can be stayed or whether to participate in an ADR program. Decision-making during this critical time period must be both informed and expeditious. Thus, these appellate strategies should at least be raised and discussed with the client early in the appellate process. 

1 Adapted and paraphrased (substantially) from The World's Best Jokes 242 (Lewis Copeland ed., 1936).

2 See Honey Kessler Amado, Unappealing Behavior, Los Angeles Lawyer, Feb. 1998, at 33.

3 The posttrial motions that are typically filed shortly after a verdict or judgment, such as motions for a new trial and for judgment notwithstanding the verdict, are not discussed here. See generally Christina J. Imre and Holly R. Paul, Reversal of Misfortune, Los Angeles Lawyer, Nov. 1997, at 29.

4 Judicial Council of California, Administrative Office of the Courts, Court Statistics Report 1999, at 28. The percentages reflect appeals terminated by written opinions in the California Court of Appeal during the fiscal years 1995-98, which is the most current information available.

5 Id. at 29. Median times indicate that half the appeals were decided within the stated time frame; the remaining 50 percent took longer.

6 Id. at 30.

7 See generally Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs §5:203 (1998).

8 Cal. R. of Ct. 19.3.

9 See, e.g., Code Civ. Proc. §44.

10 See, e.g., Ins. Code §12629.44 (appellate preference for challenges to plans for the reorganization of mortgage insurers); Gov't Code §65752 (appellate preference for writ challenges to a general plan of a city, county, or city and county); Pub. Res. Code §21167.1 (appellate preference for certain CEQA actions); Code Civ. Proc. §1062.5(2) (appellate preference for declaratory relief actions arising out of professional liability insurance policies issued to healthcare providers).

11 Code Civ. Proc. §1291.2 (arbitration proceedings); Code Civ. Proc. §1179a (unlawful detainer and forcible entry and detainer).

12 Warren v. Schecter, 57 Cal. App. 4th 1189 (1997).

13 See text, infra, regarding financing appeals via the sale of a portion of a money judgment.

14 Warren, 57 Cal. App. 4th at 1199. The appellate panel called this a "recurring issue" and invited the Judicial Council to provide expressly for appellate calendar preference for ailing or elderly litigants. Id. at 1199-1200. To date, the plea has gone unheeded.

15 Code Civ. Proc. §36.

16 Fam. Code §3023.

17 Code Civ. Proc. §37.

18 Code Civ. Proc. §1291.2.

19 Code Civ. Proc. §485.240.

20 Code Civ. Proc. §35.

21 Code Civ. Proc. §1260.010.

22 Code Civ. Proc. §526a.

23 Code Civ. Proc. §860.

24 Warren v. Schecter, 57 Cal. App. 4th 1189, 1199 (1997).

25 Arden Group, Inc. v. Burk, 45 Cal. App. 4th 1409 (1996).

26 Id. at 1411 (emphasis added).

27 Another procedure for immediate appeal of interlocutory orders is an appeal from a bifurcated issue in family law cases, as allowed by Fam. Code §2025 and Cal. R. of Ct. 1269 and 1269.5. This method, however, simply allows an issue to be resolved by the court of appeal before completion of the case in superior court; it does not grant a preference for oral argument.

28 Edward J. Haggerty, Courts Turn Thumbs Down on Stipulations to Expedite Appeals, Los Angeles Lawyer, Nov. 1998, at 16.

29 Cal. R. of Ct. 5(d).

30 Upon receipt of the clerk's transcript, counsel should check it carefully for page or document omissions.

31 See generally Robin Meadow and Laura Geffen, Taking Care of the Record on Appeal, Los Angeles Lawyer, Mar. 1993, at 21.

32 Cal. R. of Ct. 5.1(e),(f) and (g).

33 New language in italics.

34 California Judicial Council, Appellate Advisory Committee and Appellate Rules Project Task Force (Strankman Committee), Proposals for Changes to Rules, Standards and Forms, Winter 1999, Item 4 (proposing repeal of Cal. R. of Ct. 5 and 5.1 and their replacement with a new Rule 5 based on Cal. R. of Ct. 5.1.)

35 Sanchez-Corea v. Bank of America, 38 Cal. 3d 892, 898 (1985) Fundamental Inv. Growth Shelter Realty Fund I-1973 v. Gradow, 28 Cal. App. 4th 966, 978 (1994).

36 Judicial Council of California , Appellate Advisory Committee and Appellate Rules Project Task Force (Strankman Committee), Proposals for Changes to Rules, Standards and Forms, Winter 1999, Item 4 (proposing repeal of Cal. R. of Ct. 5 and 5.1 and their replacement with a new Rule 5 based on Cal. R. of Ct. 5.1).

37 Fundamental Inv. Growth Shelter Realty Fund I-1973 v. Gradow, 28 Cal. App. 4th 966, 976-79 (1994); Commercial & Farmers Nat. Bank v. Edwards, 91 Cal. App. 3d 699, 704 (1979).

38 Fish v. Guevara, 12 Cal. App. 4th 142, 148 (1993).

39 Cal. R. of Ct. 11(a).

40 Cal. R. of Ct. 11(a).

41 Code Civ. Proc. §916(a) states, in pertinent part, that "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order…." The money judgment exception is Code Civ. Proc. §917.1.

42 Code Civ. Proc. §995.230 ("The beneficiary of a bond given in an action or proceeding may in writing consent to the bond in an amount less than the amount required by statute or may waive the bond.").

43 Code Civ. Proc. §918(b).

44 Code Civ. Proc. §923.

45 Los Angeles County Sup. Ct. R. 9.38.

46 In re Christy L., 187 Cal. App. 3d 753, 758-59 (1986).

47 9 Witkin, California Procedure, Appeals, §300, at 339 (4th ed. 1997).

48 Code Civ. Proc. §708.010(b).

49 Id.

50 Id. The stay provision applies to "all proceedings under this article," which is art. 1, ch. 6, div. 2 of tit. 9, of the Code Civ. Proc.,"Enforcement of Judgments." Art. 1 covers written interrogatories and inspection demands to judgment debtors. Art. 2, applicable to judgment debtor examinations, does not contain a similar provision regarding the effect of a stay pending appeal.

51 TMS, Inc. v. Aihara, 71 Cal. App. 4th 377 (1999).

52 Code Civ. Proc. §§708.020(a) and 2030.

53 Say & Say v. Castellano, 22 Cal. App. 4th 88, 94 (1994); Stone v. Bach, 80 Cal. App. 3d 442, 443-44 (1978); Tobin v. Casaus, 128 Cal. App. 2d 588, 589, 593 (1954).

54 California Civil & Judicial Bonding & Insurance Agency, for instance, charges 2 percent if the bond is for less than $250,000; 1 percent if the bond is for $250,000 to $750,000; and 1/2 of 1 percent if the bond is for $1,000,000. Connor Insurance Agency charges 3 percent on judgments up to $100,000. The rate drops to 1.5 percent on judgments exceeding $100,000. One hundred percent collateral is required. Far West differentiates between plaintiff and defendant bonds, charging 1.5 percent of the bond amount for plaintiff bonds and 3 percent of the bond amount for defendant bonds. Both types carry a minimum premium of $100. These references to specific companies are for informational purposes only and are not intended to be endorsements.

55 Code Civ. Proc. §917.1(b).

56 Code Civ. Proc. §917.1(d).

57 Code Civ. Proc. §917.1(a)(3).

58 Code Civ. Proc. §917.1(d).

59 Bank of San Pedro v. Superior Court, 3 Cal. 4th 797 (1992).

60Id. at 803.

61 Commentators have noted this issue; see Jon B. Eisenberg et al., California Practice Guide: Civil Appeals and Writs §7:133.10 (1998). It has not yet been addressed by either the supreme court or any of the courts of appeal.

62 Code Civ. Proc. §995.120(a) defines an "admitted surety insurer" as "a corporate insurer or a reciprocal or interinsurance exchange to which the Insurance Commissioner has issued a certificate of authority to transact surety insurance in this state, as defined in Section 105 of the Insurance Code."

63 Code Civ. Proc. §917.1(b).

64 Id. If personal sureties are used, the code requires at least two such sureties. Id. In general, each surety must be worth the amount of the bond. Code Civ. Proc. §995.510(3). However, if the amount of the bond exceeds $10,000 and is executed by more than two personal sureties, the worth of a personal surety may be less than the amount of the bond provided the aggregate worth of all sureties on the bond is twice the amount of the bond. Code Civ. Proc. §995.510(b).

65 David M. Alexrad, Staying Power, Los Angeles Lawyer, Nov. 1995, at 33.

66 Code Civ. Proc. §995.710.

67 Code Civ. Proc. §995.710(b).

68 Code Civ. Proc. §995.740.

69 Code Civ. Proc. §685.010.

70 Code Civ. Proc. §995.240.

71 Welf. & Inst. Code §10962 (applications for social service benefits), §19709 (actions before Vocational Rehabilitation Appeals Board).

72 Code Civ. Proc. §995.230.

73 Cal. R. of Ct. 26(c)(5) and (6) list as recoverable cost items the premium on any surety bond procured by the party recovering costs, plus other expenses reasonably incurred to procure the surety bond, such as the cost of acquiring a letter of credit required as collateral for the bond.

74 Code Civ. Proc. §995.250(b) provides that recoverable costs shall include "the premium on a bond reasonably paid by the party in connection with the action or proceeding, unless the court determines that the bond was unnecessary." Cal. R. of Ct. 26(c)(5) has a similar provision.

75 Jewell v. Bank of America, 220 Cal. App. 3d 934, 941 (1990). Jewell sets forth several factors for determining whether a bond was unnecessary, including, among other reasons, whether it was expedient and cost-effective for the judgment debtor to have used the alternative procedure.

76 JPC is located in San Francisco and can be found on the Internet at 
http://www.lawfinance.com. General Electric Capital Corp. is headquartered in Stamford, Conn. See generally Law Verdicts for Sale, Nat'l L. J., Jan. 11, 1999, at A1 (discussing recent sales of million-dollar judgments to JPC and General Electric Capital Corp.) This reference is informational only; it is not an endorsement.

77 JPC, White Paper, A Discussion of Non-Recourse Financing For Money Judgments on Appeal (on file with the author or available directly from JPC).

78 Second Appellate District, Settlement Procedures, Revised Internal Operating Procedures (1998).

79 Fourth Appellate District, Local R. 4,; see also Innovative Programs at 4th District, Division 2, at 
http://www.courtinfo.ca.gov/courts/
courtsofappeal/4thDistrictDiv2/programs.htm
 (statistics on settlement programs).

80 Fourth Appellate District, Division Two, Local R. 4(d) and (e).

81 Court of Appeal, Fourth Appellate District, Division One, Internal Operating Practices and Procedures (amended Jan. 22, 1998) §§VIII [Settlement Conferences-Litigant Initiated] and IX [Settlement Conferences-Court Initiated]; see also Court of Appeal, Fourth Appellate District, Division 1, Frequently Asked Questions, at 
http://www.courtinfo.ca.gov/courts/courtsofappeal/
4thDistrictDiv1/faq/answer8.htm
.

82 Fourth Appellate District, Local R. 7 (Civil Settlement Conference Procedures, Division Three only).

83 First Appellate District, Local R. 3, (Settlement Conferences in Civil Appeals); see also Cal. Courts of Appeal, 1st District, Frequently Asked Questions, at 
http://www.courtinfo.ca.gov/courts/courtsofappeal/
1stDistrict/faq/answer2.htm


84 Third Appellate District, Local R. 1-10 (Settlement Conference Procedures).

85 Fifth Appellate District, Local R. 4 (Settlement Conferences in Civil Appeals).

86 Sixth Appellate District, Internal Operating Practices & Procedures §II.F.

87 Cal. R. of Ct. 19.5(e).

88 Lara v. Cadag, 13 Cal. App. 4th 1061, 1066 (1993).

89 Cal. R. of Ct. 19(a).

90 A stipulated reversal arises out of the parties' agreement that, as part of a settlement, the judgment previously entered should…be wiped off the books. "Simple fairness requires that the first and most weighty consideration be given to the parties' interests and that they be accommodated except in the extraordinary case….The courts exist for litigants. Litigants do not exist for courts." Neary v. Regents of Univ. of Calif., 3 Cal. 4th 273, 280 (1992).

91 Id. at 284 ("[W]hen the parties to an action agree to settle…and as part of the settlement stipulate to a reversal of the trial court judgment, the Court of Appeal should grant their request for the stipulated reversal [unless] extraordinary circumstances that warrant an exception to this general rule.").


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