easy619

My California Appeal (Edit: I Won!)

Recommended Posts

Well, deadlines shmedlines; My proposed statement has just now been viewed by judge, and it was not approved. There will be a hearing on the statement in a few months.

This being your original trial judge?

Link to post
Share on other sites

GrayM,  The Plaintiff filed the motion to deny my appeal based on I did not get it in on time. If you want to you can read my thread and find out the saga. I don't want to mess with Easy's thread here.  And to Ryan, once the appeal has been filed the original trial judge has no input whatsoever.  Any questions to that judge will e a moot point. In fact, so few people appeal they kept my case at justice court for almost three months without knowing to transfer to superior court.

I'm behind you Easy and wishing good luck for us both!!!

Link to post
Share on other sites

Yes, the trial judge must approve the statement on appeal. I filed the statement in mid february, never heard anything from plaintiff nor court. I spoke to judges clerk the other day, he said the statement was under review. I checked the courts ROA today and saw the hearing scheduled.

 

here is the code concerned:

 

 

(d) Review of the appellant's proposed statement

 

(1)Within 10 days after the appellant files the proposed statement, the respondent may serve and file proposed amendments to that statement.

 

(2)No later than 10 days after the respondent files proposed amendments or the time to do so expires, a party may request a hearing to review and correct the proposed statement. No hearing will be held unless ordered by the trial court judge, and the judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings.

 

(3)Except as provided in (6), if no hearing is ordered, no later than 10 days after the time for requesting a hearing expires, the trial court judge must review the proposed statement and any proposed amendments filed by the respondent and take one of the following actions:

 

(A)If the proposed statement does not contain material required under ©, the trial judge may order the appellant to prepare a new proposed statement. The order must identify the additional material that must be included in the statement to comply with © and the date by which the new proposed statement must be served and filed. If the appellant does not serve and file a new proposed statement as directed, rule 8.842 applies.

 

(B)If the trial judge does not issue an order under (A), the trial judge must either:

 

(i)Make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness that is relevant to the points which the appellant states under ©(1) are being raised on appeal; or

 

(ii)Identify the necessary corrections and modifications and order the appellant to prepare a statement incorporating these corrections and modifications.

 

(4)If a hearing is ordered, the court must promptly set the hearing date and provide the parties with at least 5 days' written notice of the hearing date. No later than 10 days after the hearing, the trial court judge must either:

 

(A)Make any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness that is relevant to the points which the appellant states under ©(1) are being raised on appeal; or

 

(B)Identify the necessary corrections and modifications and order the appellant to prepare a statement incorporating these corrections and modifications.

 

(5)The trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement.

 

(6)If the trial court proceedings were reported by a court reporter or officially electronically recorded under Government Code section 69957 and the trial court judge determines that it would save court time and resources, instead of correcting a proposed statement on appeal:

 

(A)If the court has a local rule for the appellate division permitting the use of an official electronic recording as the record of the oral proceedings, the trial court judge may order that the original of an official electronic recording of the trial court proceedings, or a copy made by the court, be transmitted as the record of these oral proceedings without being transcribed. The court will pay for any copy of the official electronic recording ordered under this subdivision; or

 

(B)If the court has a local rule permitting this, the trial court judge may order that a transcript be prepared as the record of the oral proceedings. The court will pay for any transcript ordered under this subdivision.

 

(Subd (d) amended effective March 1, 2014.)

 

(e) Review of the corrected statement

 

(1)If the trial court judge makes any corrections or modifications to the proposed statement under (d), the clerk must serve copies of the corrected or modified statement on the parties. If under (d) the trial court judge orders the appellant to prepare a statement incorporating corrections and modifications, the appellant must serve and file the corrected or modified statement within the time ordered by the court. If the appellant does not serve and file a corrected or modified statement as directed, rule 8.842 applies.

 

(2)Within 10 days after the corrected or modified statement is served on the parties, any party may serve and file proposed modifications or objections to the statement.

 

(3)Within 10 days after the time for filing proposed modifications or objections under (2) has expired, the judge must review the corrected or modified statement and any proposed modifications or objections to the statement filed by the parties. The procedures in (d)(3) or (4) apply if the judge determines that further corrections or modifications are necessary to ensure that the statement is an accurate summary of the evidence and the testimony of each witness relevant to the points which the appellant states under ©(1) are being raised on appeal.

 

(Subd (e) amended effective March 1, 2014.)

 

(f) Certification of the statement on appeal

 

If the trial court judge does not make or order any corrections or modifications to the proposed statement under (d)(3), (d)(4), or (e)(3) and does not order either the use of an official electronic recording or the preparation of a transcript in lieu of correcting the proposed statement under (d)(6), the judge must promptly certify the statement.

  • Like 1
Link to post
Share on other sites

Sounds like the judge can change your statement to whatever they feel like. Appears your best bet to fight the revisions at the hearing is (5).

 

(5)The trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement.

True. But then I don't see the need for the hearing, the other side didn't request it. They didn't even propose any changes to my statement.

Link to post
Share on other sites

Being the Judge has called the hearing with no request from the winning side, you should assume that some of the rulings maybe suspect now that you have decided to appeal.  This means you will need to walk a careful line once your honor starts saying they don't remember it that way.

 

I would have have my note pad that I took any contemperansous notes regarding any rulings from the bench at the hearing, so you could say I made a note at this jucture upon your ruling of blank.

 

I hope it is to say what a great job you have done and good luck on your appeal, I bet this won't be the case....

Link to post
Share on other sites

Easy619,

 

Here is some very good information and caselaw regarding "settled statements" which is the unlimited jurisdiction version of the limited jurisiction "statement on appeal". Not all may be applicable as you are a limited jurisdiction case and some of the stuff is relating to criminal cases but there is a lot of California appellate related caselaw in the links that may be useful to you prior to or at your hearing or even in your briefs. There is also a lot of information specific to the trial judge regarding the statement of appeal.

 

People v. Jenkins, 55 Cal. App. 3d Supp. 55

http://law.justia.com/cases/california/calapp3d/55/supp55.html

 

http://www.capcentral.org/procedures/record_procedures/docs/settled_statements.pdf

 

 

Additionally, here is a lot of appellate caselaw from an application for permission to prepare a settled statement filed in a criminal case. Still has a lot of California appellate caselaw practical to civil cases and the trial judge as it relates to settled statements.. 

 

II. APPELLANT IS ENTITLED TO A RECORD ADEQUATE FOR 
MEANINGFUL APPELLATE REVIEW.
A. Procedures For Settlement Of The Record On Appeal.
Counsel files an application for permission to file a settled statement in the trial
court, explaining why the oral proceedings cannot be transcribed. (Rule 8.346(a).) The
court must rule on the application within five days after it is filed. (Rule 8.346( B).) If
granted, the applicant must deliver a proposed statement for settlement within 30 days of
that order, unless the time is extended by the reviewing court. (Rule 8.346( B).) 
Respondent can stipulate that the proposed settlement is correct (rules 8.137©(4), 
8.346©) or, within 20 days, respondent may serve and file proposed amendments (rule
8.137( B)(4)). The clerk must set a date for a settlement hearing no later than ten days
after respondent files its proposed amendments, or the time to do so expires, whichever is
earlier, giving parties at least five days’ notice of the hearing date. (Rule 8.137©(1).) At
the hearing, the court must settle the statement and fix the time within which appellant
must prepare, serve and file it. (Rule 8.137©(2).)
A trial judge has “full and plenary power” to settle the record, “subject only to the
limitation that he does not act arbitrarily.” (Keller v. Superior Court (1950) 100
Cal.App.2d 231, 234; Marks v. Superior Court (2002) 27 Cal.4th 176, 195.) The court
has broad discretion to accept or reject counsel’s representations in accordance with its
assessment of their credibility, but cannot refuse to make an assessment. (People v.
Gzikowski (1982) 32 Cal.3d 580, 586.) The court may reply upon the suggestions of
respondent, the court’s own memory, the court’s notes made during trial, and the court’s
right to have the reporter reread such of her notes as may prove helpful (Keller v.
Superior Court, supra, 100 Cal.App.2d at p. 234) and the memories of the trial attorneys
and jurors (People v. Moore (1988) 201 Cal.App.3d 51, 56.) The court may not decline
to settle the record unless after resorting to all available aid, including the court’s own
memory and that of participants, the court is affirmatively convinced of its inability to do
so, in which case it must state reasons on the record supporting that inability. (Marks v.
Superior Court, supra, 27 Cal.4th at p. 196.) The court’s own failure of recollection does
not justify refusal to settle, where the court has no reason to doubt counsel’s
representations. (Ibid.) The court acts as a finder of fact and can determine what
occurred based on the recollections of others. (See People v. Bradford, supra,15 Cal.4th
at pp. 1331-1332, fn. 14.)
B. A Complete Record From Trial That Is Adequate For Meaningful Appellate
Review Includes All Oral Proceedings At Trial.
An appellant has a Fourteenth Amendment right to a record which is adequate to
permit meaningful appellate review, and appellate counsel has a duty to ensure that the
record on appeal is complete and to raise all viable issues on appeal. (People v. Alvarez
(1996) 14 Cal.4th 155, 198, fn. 8; In re Smith (1970) 3 Cal.3d 192, 202.) As part of the
preparation of the record in a criminal appeal, an appellant may apply to the trial court for
settlement of a statement of any part of the oral proceedings of which a transcript cannot
be obtained for any reason. (Marks v. Superior Court, supra, 27 Cal.4th at pp. 192-194.) 
An oral proceeding subject to settlement is an “unreported matter, the contents of which
may be useful on appeal.” (People v. Gzikowski, supra, 32 Cal.3d at p. 585, fn. 2.) A
settled statement is required where, as here, a complete transcript cannot be obtained, but
the appellate record can be reconstructed through a settled statement. (People v. Young
(2005) 34 Cal.4th 1149, 1170.) A settled statement generally operates to make up for the
absence of a court reporter’s transcript of oral proceedings. (People v. Grif in (2004) 33
Cal.4th 536, 554; rules 8.346, 8.137.) Rules authorizing settlement of the record on
appeal are intended to ensure that the record transmitted to the reviewing court preserves
and conforms to the proceedings actually undertaken in the trial court. (See, e.g., People
v. Pinholster (1992) 1 Cal.4th 865, 922; People v. Wright (1990) 52 Cal.3d 367, 401, fn.
6; People v. Holloway (1990) 50 Cal.3d 1098, 1116.) Appellate counsel has a duty to
settle the record where appropriate, and failure to undertake such an effort can result in a
waiver of appellate issues. (In re Kathy P. (1979) 25 Cal.3d 91, 102.)
 
 
I am not an attorney
  • Like 2
Link to post
Share on other sites

I think the biggest problem is that a lot of these cases start at the county level (or your states equivalent of the lowest court), so even when they get appealed your just getting circuit court judges that might be just as oblivious as the county court judges.  These cases all stay at these lower courts, so the opinions rarely ever get published and there's no binding case law for these types of cases in many states.  That allows these judges to do whatever they want, even if it doesn't comply with the law because for the amounts of these cases, not many people are going to go through the Appellate Process.  If the Circuit Court acting in their Appellate Capacity screws up too, the ability to obtain a Writ of Certiorari is discretionary and the standard of review is limited to due process and whether the judge followed the law.  So a Judge can completely misapply the correct law, and that doesn't warrant a Writ of Certiorari. 

 

It's really fighting an uphill battle and it's good to see people willing to go through the Appellate Process despite the long odds.

  • Like 3
Link to post
Share on other sites

...

Also, I believe the first filing in appeals for plaintiff runs about 800$...maybe their strategy is to not put any more money into this, and just let me try to win an appeal without resistance. Who knows. 

...

Did you read something like that somewhere? I figured you would have to pay about $700 - $800 since you are the one appealing.

Actually its around 400, I looked it up. Respondent's first filing fee. I wonder if they'll pay it to respond to my brief?

Something doesn't seem right.

The plaintiff should be the respondent if the defendant is the one filing the appeal.

 

If it was an unlimited civil case the appeal would seem to be from the superior court to the court of appeals: http://www.courts.ca.gov/3190.htm

Filings In Court of Appeal

First document filed in a civil case by a party other than appellant/petitioner      $390

Filings In Superior Court

Notice or Motion to Appeal - Civil (Gov. Code 68926, 68926.1( b), 5.180) (for each notice of appeal & cross appeal) CRC 8.100(b) (Check made payable to Court of Appeal)     $775

 

If it was a limited civil case appeal it would appear that the appeal is heard by the appellate division of the superior court which has a different fee schedule: http://www.courts.ca.gov/12430.htm

Appeals of limited civil cases (civil cases involving an amount that is $25,000 or less) are heard in the appellate division of your local superior court.

 

http://www.sdcourt.ca.gov/portal/page?_pageid=55,1567089&_dad=portal&_schema=PORTAL

Ref#     Other Appeals     Code Section(s)     Total fee

 170     Appeal in limited civil case (to appellate division), where amount demanded in case does not exceed $10,000      GC 70621(b),  70602.5      $225

 

If this is an appeal to "the the appellate division of your local superior court" I would guess it is a lower filing fee of $225 for the appellant/defendant but I doubt any decision by the  appellate division of a superior court would result in citable opinion/case law.

 

I thought I read this to be an appeal of a limited civil case but with the fees discussed being $700-800 and $400 that would indicate it would be an appeal of an unlimited civil case to the court of appeal ($775 appellant/$390 respondent).

Link to post
Share on other sites

@Credator it is indeed an appeal of a limited civil case, which will be heard by the appellate division of the superior court. Appeal filing fee is 225. Maybe I confused the respondents first filing fee, and that is only appicable in court of appeals, not appelate division of superior court. Not sure. Either way, it's interesting that plaintiff(respondent) didn't see fit to oppose or propose any changes to my statement.

 

@doublethefun9941 great post, thanks. I'll have to really dive into this settled statement case law and see if I can find a few things to help defend myself/my statement from the judge. I can't imagine this will be a fun hearing, as the judge (who thought I was a know it all before) probably hates me now, and does not want me to win in appeals. 

Link to post
Share on other sites

I'm confused here.  I understand it's different in other states but allowing someone to file a motion in opposition to an Appeal seems counter-intuitive to the entire process.  The whole point of an Appeal is that you think the judge did something wrong, so if that exact same judge is ruling on, supposedly, your right to even have an Appeal it makes no sense.  An Appeal is a right, as a safety-net to make sure wrongs are corrected.  All you should have had to do was correctly, and timely file your notice of appeal and follow the proper rules of appellate procedure in your state.  They can file a motion to dismiss (maybe that's what you're referring to?) the Appeal, but that motion would only come in the Appellate Proceedings.

Unfortunately, they get that free swing at the ball. The motion tests the basis of appeal before briefing starts, also you have to await direction from the appellate clerk for the briefing schedule.

Link to post
Share on other sites

Well, deadlines shmedlines; My proposed statement has just now been viewed by judge, and it was not approved. There will be a hearing on the statement in a few months.

They can take their sweet time about the statement on appeal. If there is an electronic recording the appellate may on their own order have it transcribed for the record. temporary judge cases are recorded, but you would have to get that recording before it is destroyed. In my case, I called the clerk for the presiding judge and requested a copy so I could get it transcribed. They called me back and said that they could not give it to me. I asked them to preserve it for the reviewing court but the appellate didn't call for it.

 

 

Have you found anything to prevent the judge from addressing your statement after the legal deadline or are judges immune to deadlines during the appeal process. Keep fighting and keep your head up. Your doing great and we are all pulling for you.

As for the statement on appeal their are guidelines but the reviewing court grants extensions. For the record it took a long time to get to the hearing. Also the appellate can refuse to hear the appeal and deny it. The appellate will get in to the trial court clerks about the record. The clerks in my case hated me after the appellate clerk called them and said WTF is the record.

My hearing for the statement was 42 days from filing.

  • Like 1
Link to post
Share on other sites

I think the biggest problem is that a lot of these cases start at the county level (or your states equivalent of the lowest court), so even when they get appealed your just getting circuit court judges that might be just as oblivious as the county court judges.  These cases all stay at these lower courts, so the opinions rarely ever get published and there's no binding case law for these types of cases in many states.  That allows these judges to do whatever they want, even if it doesn't comply with the law because for the amounts of these cases, not many people are going to go through the Appellate Process.  If the Circuit Court acting in their Appellate Capacity screws up too, the ability to obtain a Writ of Certiorari is discretionary and the standard of review is limited to due process and whether the judge followed the law.  So a Judge can completely misapply the correct law, and that doesn't warrant a Writ of Certiorari. 

 

It's really fighting an uphill battle and it's good to see people willing to go through the Appellate Process despite the long odds.

I think the reviewing courts have to allow the courts to operate under judicial discretion and when a court gets out of bounds they bump them back in. Several cases had the courts designed their own procedures and ultimately the California Supreme Court had to make a good ruling. Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007)

  • Like 3
Link to post
Share on other sites

Hi, Are you working on your memorandum? Is that required in CA?  I am reading through 86 pages of transcripts from the trial in June. I feel like it is the same as working on a MOSJ.  Plus my case was so wierd I don't know if should give a summary of what happened leading up to trial that was wrong.  Hope things are good on your end.

Link to post
Share on other sites

There will be a memorandum of points and authorities in my brief, but I haven't done much on it yet, seeing as the briefing won't be scheduled until after the proposed statement hearing, which isn't for a few months.

Link to post
Share on other sites

Unfortunately, they get that free swing at the ball. The motion tests the basis of appeal before briefing starts, also you have to await direction from the appellate clerk for the briefing schedule.

 

Yes, but I interpreted his statement to mean that it was filed in the original court, and not in the Appellate Court.  It's a perfectly reasonable motion to file in the Appellate Court so as to avoid completely unnecessary Appeals and I would assume the standard for dismissing an Appeal is quite high.

Link to post
Share on other sites

Hearing is coming up very soon. I'm not really sure how to prepare for it since this seems to be uncharted waters. THere's no official form or anything for me to file, i've already filed my statement on appeal which is what the hearing is over. I'm assuming the judge doesn't like my recounting of the witnesses testimony, although plaintiff never opposed it. I think my best bet is to continue to study the code regarding the appeal process and see what the judge wants me to do in order to get the record approved. 

Link to post
Share on other sites

Keep up the good fight, easy. Compared to most members, your in uncharted territory with your appeal, I greatly admire what you're doing here. Always here to help if I can.

 

So this hearing is about approving the record you submitted? Any chance it will go further, as in you'll have to present your case in it's entirety?

Link to post
Share on other sites

It is a hearing on my proposed statement.

 

appeals rules title 8.37 D

(2)1pixel.gifNo later than 10 days after the respondent files proposed amendments or the time to do so expires, a party may request a hearing to review and correct the proposed statement. No hearing will be held unless ordered by the trial court judge, and the judge will not ordinarily order a hearing unless there is a factual dispute about a material aspect of the trial court proceedings.

 

Seeing as plaintiff filed no opposition to my proposed statement, this means that it is the judge who feels there is a factual dispute. I believe it is over my recount of the witnesses testimony, more specifically the question and answer format I submitted it in. The clerk had called me asking if this was a verbatim transcript or my account, and this call was a day or two before the hearing was scheduled. So, I'm guessing they feel the Q&A format i submitted in may be misleading as to being a verbatim transcript and not merely a condensed summary. The judge may possibly oppose the factual nature of some of the testimony as well, but I don't see why I didn't make anything up, I took notes of the witnesses testimony at trial and made my testimony summary off of that.

 

Another important rule for me is:

(5)1pixel.gifThe trial court judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement.

 

This will help me defend my statement. Otherwise, the judge can make any modifications or corrections they see fit.  I'm not looking forward to going before this judge again, and I can't imagine I'll get a warm welcome while challenging the courts ruling.

 

I also noticed another midland trial scheduled right before my hearing, i might pop my head in and see how it goes.

  • Like 2
Link to post
Share on other sites

I was correct more or less. After some confusion (the clerk wasn't sure why the hearing had been called, had to call around) and plaintiff failing to show (big surprise), the judge ordered that I change my testimony from Q and A form to a narrative summary, and also to remove references to motions and objections and other trial procedures from the testimony section, as there is a separate part for motions. There was also a part where I had marked there wrong box. 

 

The clerk apologized, saying the hearing probably wasn't necessary, and the these proposed statements were very new to them, as the court nixed civil unlimited court reporters a year back. Overall the clerk was very friendly and helpful to me as he had been throughout the litigation. The judge was also extremely professional, I was uncomfortable going before the judge whose ruling I'm challenging, but judge seemed impartial.

 

I've reformatted my statement, which by code must be re-submitted within 10 days of the hearing, and will  have served/file it to plaintiff/court later this week. Plaintiff and Judge will again have chance to object or oppose to the statement, which I would then have to modify or object to the changes. If everybody is ok with the statement, then the trial court will soon supply the appellate division with the full appeal file, and the briefing schedule will be set then. 

 

So, the lesson is if you're doing a proposed statement on appeal, don't submit your testimony records in Q and A format if there was no court reporter.

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.