Appellate Review

There are generally two possible methods by which appellate courts can review lower court judgments and orders:

  • On a direct appeal from the judgment or order; or
  • On a petition for extraordinary writ.

The threshold issue is whether the particular judgment or order is appealable and if so, by whom, (i.e. who has standing to bring the appeal). Generally, only final judgments and orders are appealable. This principle is oft referred to as the one final judgment rule. A final judgment or order is one that completely concludes the case in the trial court.  A case concludes where no issue is left for future consideration in the trial court. 

On the other hand, a judgment is interlocutory (and usually not appealable unless made so by an applicable statute) where an additional judicial action in the trial court is necessary for a final determination of the parties’ rights. Non-final judgment appeals are generally not entertained when the issue being contested is evidentiary – i.e., the admission or exclusion of a certain piece of evidence. The types of issues that may be appealed prior to a final judgment being issued are much more limited than issues after a final judgment, where almost any decision of a material issue (an issue that actually had an impact or made a difference in the outcome of the case) can be appealed. The reasoning behind this rule is clear – that appellate courts only want to hear cases when they are important and cannot be resolved in any other manner. 

Final judgments generally include most judgments entered, such as an order granting summary judgment after a trial, or an order of dismissal of the entire action upon sustaining a demurrer with prejudice. For reference, a non-exhaustive list of appealable judgments and orders may be found under California Code of Civil Procedure § 904.1.

Attorney Stanley P. Lieber has handled numerous civil appeals and thousands of civil litigation matters. He has been in practice since 1973 and offers free consultations for all types of civil disputes, in matters litigation has not yet commenced and in cases where an appeal is the only viable option.

Standing to File a Civil Appeal

Another component of appellate court jurisdiction, which warrants attention, is the issue of standing (the right to even be a participant in a lawsuit).  In addition to the requirement that the judgment or order be appealable, the party that wishes to appeal must also have proper standing. Pursuant to California Code of Civil Procedure § 902, only parties personally affected have standing to file an appeal.  As such, to have standing, the appellant, (i.e., the appealing party), must:

  • Be a party of record in the trial court action; and
  • Be aggrieved.

How Civil Appeals are Decided

A court of appeals essentially answers the question: did the trial court make a legal error in deciding the case?  As such, the court of appeals does not hear testimony from a live witness, nor will it consider new evidence.  Rather, the court only reviews the written record generated by the trial court proceedings (i.e., the evidence admitted at trial, the transcripts of testimony given, as well as the affidavits and discovery materials filed with the court).

In reviewing the actions and determinations of the trial court, the court of appeals will show greater deference to the trial court on some issues.  Thus, generally, the type of issue raised by the appealing party and the standard of review applied will affect the likelihood an appeal will succeed.  Rulings on questions of law are reviewed de novo, which ultimately means that the court of appeals affords no deference to the action of the trial court.

Therefore, review under a de novo standard is more likely to result in a reversal.  The issues reviewed de novo are purely legal issues, as opposed to factual issues, (e.g., what law applies? vs. what are the facts in this case?).  A court of appeals will review some trial court actions, (e.g., admission or exclusion of evidence at trial, or the denial of additional discovery), under an abuse of discretion standard.  Here, the appellate court does not focus on whether or not the trial court’s decision was correct/incorrect.

Rather, the appellate court is reviewing the decision, (and the process which resulted in reaching that decision) to see whether it “falls within a broad range of permissible conclusions.”  The appellate court will allow such rulings to stand it finds reasonable (even if it would not have made the same ruling in the first instance).  Id.  As such, there is only a small likelihood that an appellate court will reverse a trial court action or decision under an abuse of discretion standard.  Another important limit on the inherent power of an appellate court is their inability to judge the credibility of evidence or witnesses presented at trial.

The court of appeals generally will not rule that a witness was not credible or compare the relative strength of evidence proffered by the parties, (i.e., plaintiff and defendant).  In short, the court of appeals will affirm a verdict if there is any evidence to support it.  Thus, the appealing party must demonstrate that trial record contains no evidence to support the verdict rendered, which can be extremely difficult.

Federal Appellate Cases

Most appellate cases are decided by three-judge panels, both at the state court level and at the federal level with Circuit Courts. In California, all appeals in federal court are heard at the Circuit Court level (unless the United States Supreme Court allows the case to be heard directly after being tried in District Court). Federal Circuit Courts are appellate courts and matters are also held in front of three-judge panels. In state court and federal court, parties who are unsuccessful can and often do apply for an “en banc” hearing. An en banc hearing is a hearing before a larger panel (with all judges [with some exceptions] in that circuit [in California, the Ninth Circuit]).

The Ninth Circuit is one of two circuits whose en banc procedures do not require all appellate judges to hear an en banc matter (the Ninth Circuit has 29 judges, so its en banc proceedings are held with 11 justices, not the full amount that sit on the Ninth Circuit Court of Appeals (29) (the Fifth Circuit is the only other Circuit Court that has less than its full membership sit for en banc hearings). The Ninth Circuit Court of Appeals is the largest federal appellate court in the United States and hears appellate matters that originate in Hawaii, Oregon, Washington, Alaska, Idaho, Montana, Nevada, Arizona and California. It’s headquarters is in Washington and the court hears matters in Portland, Pasadena, Seattle and San Francisco. It’s large size is due to California’s large population. The court also hears matters originating in Guam and the Mariana Islands. Each Circuit Court in the United States is within the jurisdiction of one United States Supreme Court Justice. The assigned United States Supreme Court Justice for the Ninth Circuit is Anthony Kennedy. This type of assignment is necessary for many reasons, among them the need for decisions to be made about emergency matters, such as writs or stays of lethal executions of individuals sentenced to death within the Ninth Circuit’s jurisdiction.

State Appellate Cases

California state courts have two levels of appellate review after the Superior Court Trial Courts: the District Courts of Appeals and the California Supreme Court. The California Supreme Court is comprised of seven justices and they hear all matters together, at once, with no “panel” of justices. This means that all seven hear all cases. Opinions are written by the justice assigned by the Chief Justice or the next most senior member who has voted with the majority. While the California Supreme Court may hear matters in different venues (San Francisco, Los Angeles, Sacramento), all justices travel together and hear every matter unless one or more justices recuse themselves.

The level below the California Supreme Court and above the Superior Court level is, as discussed above, the District Court of Appeals. In California, Los Angeles falls within the Second Appellate District. Located in the Ronald Reagan State Building in downtown Los Angeles and in Ventura. Like with the Ninth Circuit in Federal Court, appeals with the District Court of Appeals are automatic, and not discretionary. This means the judges do not choose which matters they hear, anyone can appeal a judgment from Superior Court. The Second Appellate District also hears matters that originate in Ventura County, Santa Barbara County and San Luis Obispo County. The district has eight divisions, and only the sixth division is held outside of Los Angeles (in Ventura), and each division has four appellate justices, with a total of 32 justices. 

The Second District held its first session on April 24, 1905. It is now made up of four counties, Los Angeles, Ventura, Santa Barbara and San Luis Obispo. There are eight Divisions of four justices each. Divisions 1-5, 7 and 8 are located in Los Angeles, and handle all matters arising from the Los Angeles Superior Court. Division 6 is located in Ventura and handles all matters from the Ventura, Santa Barbara and San Luis Obispo Superior Courts.