Legal Question in Appeals and Writs in California

Re: Appeal

When you appeal it goes to a different Court and different Judges. The Appeals Court looks to see if the Judge made errors of law, such as wrongfully refusing to consider evidence, wrong rulings of law, or that the facts presented do not warrant the decision reached. If you win at Appeals Court then the most likely would be a retrial of the issues and a new trial.

JOEL SELIK

Attorney at Law

800-894-2889

760-479-1515

702-243-1930

Licensed to Practice Law in California and Nevada Only

CA Licensed Real Estate Broker

CONCENTRATING IN REAL ESTATE, ELDER ABUSE, LITIGATION AND COLLECTIONS

Personal Injury, Contracts, Tax Matters, Business,

Malpractice, Appeals, Elder Neglect/Abuse/Nursing Home Malpractice

Real Estate, and Other Legal Matters

This is just general information. No representations are made and no attorney client relationship is established by this communication. In most matters there are strict time limitations within which actions may be taken or your rights will be compromised. We are not taking any action on your matter and will not be considered your attorney or tax representative until both you and we have signed a fee agreement.

We, therefore will take no action on your behalf unless a written retainer agreement is signed. There are strict deadlines, called statutes of limitation, within which claims or lawsuits must be filed. Therefore, if you do not retain SELIKLAW, you should immediately seek the services of another attorney or other advisor.

If you send a lawyer or law firm email, your email will not create an attorney-client relationship and will not necessarily be treated as privileged or confidential. You should not send sensitive or confidential information via email. The lawyer or law firm to whom you are writing may not choose to accept you as a client. Moreover, as the Internet is not necessarily a secure environment it is possible that your email sent via the Internet might be intercepted and read by third parties.

Re: Appeal

The Code section you cite says only what a judge must do when he dismisses a case. There are many reasons why a case can be dismissed, and offers no way to tell what led your judge to do this.

The fact that the case was dismissed does not mean you were treated unfairly or that the judge was biased in favor of the defendant. Instead, you probably made a procedural error (like missing the statute of limitations or not properly pleading your complaint) which required the court to dismiss the case. Pro per plaintiffs make such mistakes all the time, and this is one reason why it is important to have a lawyer.

You ask whether your best course of action is to appeal or to bring a motion either to vacate or for reconsideration. The answer depends upon the facts and posture of your case, but you haven't provided any pertinent information. Some of these options may not even be available here, while there may be others you have not listed.

Dismissals are usually not appealable orders, but the judgment which is entered after dismissal usually is. I say "usually" because there are circumstances in which the plaintiff would not be able to appeal until much later, after other portions of the case are over. Here again, your question does not provide enough information.

You also don't say whether yours was a small claims case, a limited jurisdiction case (i.e. one seeking less than $25,000) or an unlimited jurisdiction case (i.e. one seeking $25,000 or more). These types of cases are handled very differently on appeal, and even go to different courts. These different types of cases have different deadlines and different procedures, so I can't offer you any specific guidance without more information.

In any event, you would file your notice of appeal with the office of the clerk and not with the individual department. After you file the notice of appeal you will need to file a designation of the record, which will tell the court what portions of the reporter's transcript you want. The record on appeal almost always includes copies of many of the documents which were filed in the trial court, including the complaint, the answer, motions and rulings. In most cases the appellant will not need to include the entire court file. There are several ways to provide this portion of the record to the appellate court, and each has its own advantages and disadvantages.

There are standard forms you can use for the notice of appeal and for the designation of the record. LawGuru won't let me provide a link, but your court's website should contain either the forms themselves or a link to another site where you can find them.