APPELLATE NOTES – TIPS FOR THE RESPONDENT by Audrey Powers Thornton, Esq.
Tips for the Respondent
The schedule of briefing the case on appeal gives the Respondent one chance to file a brief, whereas the Appellant has two: briefing begins with Appellant’s Opening Brief, followed by the Respondent’s Brief, and then the Appellant has the option of filing a Reply Brief. If there is a cross-appeal, the briefing on the cross-appeal is combined with each parties’ briefs on the principal appeal. The briefing schedule will be: an Appellant’s Opening Brief, a combined Respondent’s Brief and Cross-Appellant’s Opening Brief, a combined Appellant’s Reply Brief and Cross-Respondent’s Brief, and a Cross-Appellant’s Reply Brief.
Respondent’s Opening Brief Deadline:
The Respondent’s Opening Brief must be served and filed within 30 days after the filing of the Appellant’s Opening Brief. (California Rules of Court, hereinafter “CRC”, 8.212(a)(2), 8.412(b)(2).)
When you receive a Notice of Appeal from the other side in a case, you should review whether you want to file a cross-appeal and keep in mind the filing deadlines. The standard deadlines and extensions for filing a notice of appeal also apply to the filing of a notice of cross-appeal. However, when the Appellant has timely filed an initial notice of appeal, there is a statutory extension of the deadline for all cross-appeals for 20 days after the superior court serves notification of the first appeal. (CRC 8.108(g)(1).) The 20–day extension for cross-appeal begins to run from the date of mailing shown on the superior court clerk’s notification of the first appeal. If you are filing a protective cross-appeal from the original judgment when the Appellant has timely filed an initial notice of appeal from an order granting a new trial, an order granting a motion to vacate, or an order granting judgment NOV, the time to file a protective cross-appeal is extended for 20 days after the superior court clerk serves notification of the first appeal. (CRC 8.108(g)(2).)
Motion to Dismiss and Sanctions:
If the appeal lacks jurisdiction or is frivolous the Respondent can file a Motion to Dismiss prior to filing the Respondent’s Opening Brief or, in the alternative, you can raise this in the Respondent’s Opening Brief. If you intend to ask for sanctions against the Appellant (which is generally discouraged, and is subject to strict substantive and procedural guidelines) this must be raised in a separate Motion for Sanctions and cannot be included in the Respondent’s Brief. (California Code of Civil Procedure §907, CRC 8.276.) (See discussion of sanctions awarded for frivolous appeals in California Practice Guide: Civil Appeals and Writs, by The Rutter Group, 2013 (hereinafter “Cal. Prac. Guide Civ. App. & Writs”), CH. 11-E, ¶11:100, 11:106 et seq.)
The Respondent’s Opening Brief:
The Respondent’s Opening Brief should contain the same elements of an appellant’s opening brief, review the Rules of Court governing the form and content of appellate briefs. (CRC 8.204.) When you are representing the Respondent in an appeal it is important to write a thorough Respondent’s Opening Brief which gives the Court of Appeals a clear picture of what happened in the lower court. The Court will look to the Respondent’s Brief as its primary guide to the appeal if the brief thoroughly summarizes all crucial aspects of the case. Draft the Respondent’s Brief with that goal in mind. Think of the Respondent’s Opening Brief as an independent self-contained document, and not simply a response to the Appellant’s Opening Brief. When you are writing the Factual Summary and the Procedural History, do not rely upon the Appellant’s recital of the facts or procedural history. Present a full recital of the facts, of course with the emphasis on those facts that are relevant to why your client prevailed in the underlying decision. (See Cal. Prac. Guide Civ. App. & Writs, CH. 9-B, ¶9:66, 9:68.)
Look carefully at the standard of review chosen by the Appellant. If the standard of review is incorrect, or inappropriate for certain issues raised by the Appellant, you want to bring this to the court’s attention and correct it.
The Argument section of the Respondent’s Opening Brief can present its own characterization of the issues presented. With regards to the number of issues that should be raised in a Respondent’s Brief, a Respondent may provide as many reasons possible to affirm the judgment, because the court is not limited to the issues raised by the Appellant if it wants to affirm the judgment. As a Respondent, do not feel compelled to follow the Appellant’s sequence of issues raised on appeal, feel free to structure the sequence of issues in a manner that will best support the Respondent’s position. (See Cal. Prac. Guide Civ. App. & Writs, CH. 9-B, ¶ 9:68.)
Remember that the rules governing the scope of appellate review will limit the issues that Appellant can raise and the manner in which they are argued. This works to Respondent’s advantage and should be relied upon in Respondent’s Opening Brief.
The Respondent wants to present a clear picture why the underlying decision should be affirmed, thus, the Respondent’s Brief should use a tone and structure that explains why the decision below was correct and rebuts each of the Appellant’s arguments. Remember, even if you believe that one of Appellant’s issues is meritless, do not ignore it, but respond to it in some manner. The Court of Appeals has held that a contention raised in the Appellant’s Opening Brief to which Respondent makes no reply in its brief “will be deemed submitted on appellant’s brief”. (California Ins. Guar. Ass’n v. Workers’ Comp. App. Bd. (2005) 128 Cal.App.4th 307, 316, fn. 2.) (See Cal. Prac. Guide Civ. App. & Writs, CH. 9-B, ¶ 9.68, 9.69.)
In response to an Appellant’s contention of error by the lower court, a Respondent may be able to argue that no error occurred. However, it is risky to make that your sole argument regarding the alleged error. It is advisable to always try to show as well why any error, if it occurred, was “harmless error”.
The Conclusion of the Respondent’s Brief should state precisely what the disposition of the appeal should be. Do not forget to request your client’s attorney’s fees or costs in your Conclusion if they are recoverable in your action.