Legal Question in Appeals and Writs in California

Re: Appealable issues

There is a difference between an issue of law and an appealable order. In determining whether something is appealable, lawyers look at two things.

First, an appellate court does not have jurisdiction over an appeal from a non-appealable order. This rule has many complex subissues. In order to appeal, you take an appeal from an appealable order, in this case, the judgment against you in the cross-complaint. An order terminating a case on a cross-complaint is not appealable until the underlying case has been determined. It sounds as if this has happened in your case. It is important that your lawyer perfect the appeal. For example, an order sustaining a demurrer or granting a motion for summary judgment are not appealable, but an order dismissing the case or the actual judgment itself is. These are bizarre rules that confuse many trial lawyers.

Second, determining whether you have an appealable issue is a matter of application of the rules of evidence, and analysis of the substantive law. If your attorney is not going to handle an appeal, you should seek an appellate specialist as soon as possible.

A good appellate attorney will want to examine the file and the relevant evidence, because this will form the record of your appeal. He will want to do this now, and then he will determine whether or not you have appealable issues or should cut your losses. Above all, you should remember that a mistake committed by you or your attorney is not grounds for reversal. An appellate court will only reverse a trial judge if the judge made the actual error, not you or your trial attorney.

Very truly yours,

Re: Appealable issues

Each of the prior responses raise good points. Most important, however, is that you preserve your right to appeal. Your inquiry does not provide information as to when and if the judgment has been entered and/or whether notice of entry has been served. That date will govern not only the deadline for filing a Notice of Appeal, but also for filing a Motion for New Trial, which in turn affects the deadline for filing a Notice of Appeal.

In any event, the deadline - whatever it may be - is jurisdictional, which means that you have no recourse in the event that you allow that deadline to lapse.

I am a certified appellate law specialist with 20 years of civil appeals experience. Please fee free to contact me if you would like to discuss your case further.

Re: Appealable issues

Depending on the time frame involved, why don't you discuss a motion for a new trial (or motion to enter a different judgment) with your attorney? You can get his explanation of the damages issue, and see if the judge can be persuaded to change his/her mind. This is the appropriate first step for a later appeal. And it will give you a chance to litigate these specific issues with the other side to see what chance you might have for an appeal. While your description sounds like the judge erred, without more facts it is hard to say the result would have been different, i.e., harmless error. So fixing this in the trial court if possible is a preferable first step.

Re: Appealable issues

I agree with Mr. Murray.

If you want to appeal the judgment, you will have to file a timely notice of appeal. The rules for determining the deadline are surprisingly nuanced, even though they appear straightforward at first glance. Your lawyer should make sure he knows this date and doesn't miss it.

The first two issues you list seem arguable, though how strong they are will depend upon details I don't have. The third point doesn't strike me as very promising, since a judge who disagrees with the amount of damages being sought is free to award a lesser amount. That is perhaps what should have happened here.

There may be a good issue about whether the judge's belief that you were "taking advantage of the plaintiff�s breach" is relevant at all. The reason we enforce contracts is precisely to ensure that the non-breaching party has a remedy when the other side breaches, so it seems tha court was faulting you for seeking relief you were entitled to under the law. With more facts I might see things differently, but for now that logic seems unsound to me.

If you want a different attorney to handle your appeal you should feel free to contact me directly. I am a certified specialist in appellate practice (my certification is from the State Bar of California's Board of Legal Specialization), and am one of only 240 California attorneys so certified.

Re: Appealable issues

Of course it is appealable, IF you do so within the limited time you have to file your appeal. If you let the time pass, you lose that right. You have to support you arguments on appeal, which requires thorough, detailed pleadings based upon the trial procedings and evidence. You have to get and preserve all the pleadings, the court reporter's transcript, and the trial exibits, among other things. Feel free to contact me to discuss, if seriously interested in hiring counsel to represent you in this.

Re: Appealable issues

I would have to see the file to determine whether the judgment is appelable or not. Feel free to call me if you are in the Encino area.

Re: Appealable issues

The lack of damage award appears to be a potential good area of appeal, depending on the exact facts, wording of decision and research.

Some of the other issues you cite may also be good appellate issues.

Joel