APPELLATE REVIEW & Preculsion Flashcards Preview

CA Civil Procedure > APPELLATE REVIEW & Preculsion > Flashcards

Flashcards in APPELLATE REVIEW & Preculsion Deck (19):

Basic idea of appellate review

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.


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

-- 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.


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

the appellate
department of the Superior Court.


Final judgment rule.

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


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.

it is automatically considered a final judgment


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

-- 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.


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

(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.


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

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.


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

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

The writ is issued to an inferior court


The party seeking the writ must demonstrate:

(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.


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

No - it is always discretionary


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

From a denial of a motion to quash service of summons


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?

CA law


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?

With a motion for summary judgment


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?

Federal - yes

CA - no


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:

the statute of limitations


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

-- 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.


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?

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


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?

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