APPELLATE REVIEW & Preculsion

Question 1

Basic idea of appellate review

Answer 1

In an unlimited case, we appeal from the Superior Court to the California Court of Appeal.

Appeal is to the district of the Court of Appeal to which the county is assigned.

Question 2

Timing: generally, the notice of appeal must be filed in the trial court within:

Answer 2

• • 60 days after mailing or service of the “notice of entry” of judgment or
• • 180 days after entry of judgment if no notice is served.

Question 3

Judgments in limited civil cases and small claims matters are appealed to…

Answer 3

the appellate
department of the Superior Court.

Question 4

Final judgment rule.

Answer 4

Like federal courts, California follows the final judgment rule. So generally one cannot appeal until the merits of the entire action are resolved.

Question 5

P sues D-1 and D-2. The trial court enters summary judgment in favor of D-2. P would
like to appeal that judgment. In federal court, it would not be a final judgment because the
cause of action by P against D-1 is still pending, so the case is not wrapped up. In state
court, though, a judgment wrapping up the dispute as to one of several parties is considered
a final judgment and can be appealed.

Answer 5

it is automatically considered a final judgment

Question 6

Interlocutory (non-final) review.
By statute, these are appealable:

Answer 6

• • Order denying (not granting) certification of an entire class action;
• • Order granting (not denying) new trial;
• • Order granting (not denying) a motion to quash service of summons;
• • Order granting a dismissal or stay of a case for forum non conveniens;
• • Order denying a motion for JNOV;
• • Order granting, dissolving, or refusing to grant or dissolve an injunction;
• • Order directing party or attorney to pay monetary sanctions of over $5,000.

Question 7

Collateral order rule: Court of Appeal may hear appeal on:

Answer 7

(1) an issue collateral to the merits of the case
(2) that the trial court has decided finally, if
(3) it directs payment of money or performance of an act.

Question 8

Extraordinary (or peremptory) writ. If an order is not otherwise appealable, the aggrieved party may seek:

Answer 8

a writ of mandate (to compel a lower court to do something the law requires) or prohibition (to stop a lower court from doing something the law does not allow).

These are extraordinary – not routinely granted.

Question 9

Though an extraordinary writ provides appellate review, technically, it is not an “appeal.” What is it?

Answer 9

It is a separate proceeding filed initially in the Court of Appeal

The writ is issued to an inferior court

Question 10

The party seeking the writ must demonstrate:

Answer 10

(1) that she will suffer irreparable harm if the writ is not issued (i.e., lower court result is unusually harsh or unfair),
(2) the normal route of appeal from final judgment is inadequate, and
(3) she has a beneficial interest in the outcome of the writ proceeding.

Question 11

If a party makes this showing, is she entitled to the extraordinary writ?

Answer 11

No - it is always discretionary

Question 12

Much more important example: in what situation is seeking a writ of mandate the ONLY way to get appellate review?

Answer 12

From a denial of a motion to quash service of summons

Question 13

Remember we apply the preclusion law of the system that decided Case 1.
– Say Case 1 is in California court, and judgment is entered. Case 2 is in federal court (in any state). What law of claim and issue preclusion does the federal judge
in Case 2 use?

Answer 13

CA law

Question 14

Claim and issue preclusion are affirmative defenses, so defendant should raise them in her answer. How is the question often raised on the bar exam?

Answer 14

With a motion for summary judgment

Question 15

Effect of appeal.
– Suppose the judgment in Case 1 has been appealed (or the time for appealing has not yet expired). Is that judgment entitled to claim or issue preclusion effect?

Answer 15

Federal - yes

CA - no

Question 16

What is “on the merits” for preclusion purposes?
– We saw the general rule that any judgment is “on the merits” unless it was based upon jurisdiction, venue, or indispensable parties. Under California law, it would also NOT be “on the merits” if Case 1 was dismissed under:

Answer 16

the statute of limitations

Question 17

Definition of claim (or cause of action) for claim preclusion (res judicata).

Answer 17

• • Federal law adopts the majority rule: claim is all rights to relief arising from a transaction or occurrence.
• • California law adopts “primary rights” – you get a separate cause of action for each right invaded.

Question 18

Case 1: P sues D for personal injuries sustained in an auto collision. A valid final judgment on the merits is entered. Case 2: P sues D for property damage from the same crash. Should the court enter summary judgment for D in Case 2 under the doctrine of claim preclusion?

Answer 18

Federal: Yes - P sued twice on the same T/O

CA: No - Case 1 and Case 2 involve different causes of action because they involve different primary rights: 1 - property; 2 - personal injury

Question 19

P and D are parties to a contract under which D is required to make monthly payments. When P files Case 1, D has failed to make six such payments. Under federal and California law, are there six separate claims here or only one claim or cause of action?

Answer 19

One - the cause of action consists of all breaches up until the case is filed - by the time we sued, the 6 are deemed to be 1

CA is the same as Federal Law on Issue Preclusion