Appellate Law

Appellate Practice Roundup - February 2015

Author: Colin McGrath

Over the past few months, a number of important appellate procedure opinions have issued in federal and California appellate courts regarding posttrial motions, appealability, and appellate jurisdiction under various circumstances. Below are short statements of the relevant procedural holding in each decision.

U.S. Supreme Court

Gelboim v. Bank of America, 135 S. Ct. 897 (Jan. 21, 2015)
The complete dismissal of a single action that is consolidated in multidistrict litigation for pretrial proceedings is immediately appealable.

Warger v. Shauers, 135 S. Ct. 521 (Dec. 9, 2014)
The Federal Rule of Evidence 606(b) bar against jury deliberation evidence applies to a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire.

U.S. Circuit Courts

Campion v. Old Republic Protection Co., Inc., 775 F.3d 1144 (9th Cir., Dec. 31, 2014)
In a class action, the settlement and express release of the representative plaintiff’s individual claims completely disposes of the plaintiff’s financial and personal interests in class certification, thus mooting the plaintiff’s appeal of any class claims.

Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir., Nov. 25, 2014)
After a case has been remanded to state court under the federal removal statute (28 U.S.C. § 1447(d)), the district court still retains jurisdiction to vacate its remand order under Rule 60(b)(3) and to issue Rule 11 sanctions based on fraud, misrepresentations, or misconduct during the removal proceedings.

California Courts of Appeal

Maroney v. Iacobsohn (Jan. 27, 2015, 2d Dist., Div. 3) No. B249890, 2015 WL 344277
A trial court’s order granting a new trial motion on the condition that the moving party would appeal from the order and secure a favorable appellate court ruling on the issue of whether the trial court had jurisdiction to decide the motion was an invalid conditional order and a legal nullity. Therefore, because the trial court failed to enter a valid order within the 60-day jurisdictional time frame allowed by Code of Civil Procedure section 660, the new trial motion was denied by operation of law and the Court of Appeal was powerless to reinstate or revive the motion in the trial court.

Flannery v. VW Credit, Inc. (Dec. 17, 2014, 4th Dist., Div. 1) 232 Cal.App.4th 606
The entry of a second judgment, entered after the initial judgment is set aside and before the time to file a notice of appeal from the first judgment has expired, resets the clock to file a notice of appeal under California Rule of Court 8.104(a)(1)-(3).

Conservatorship of Townsend (Gonzales v. Aurora Loan Services, LLC) (Dec. 12, 2014, 2d Dist., Div. 3) 231 Cal.App.4th 691 (petition for review denied Jan. 28, 2015)
To toll the 60-day deadline to appeal under California Rule of Court 8.108(c), a motion to vacate a judgment must be submitted to the court clerk per California Rule of Court 2.400(b) and Code of Civil Procedure § 663a, without exception.

Pacific Corporate Group Holdings, LLC v. Keck (Dec. 12, 2014, 4th Dist., Div. 1) 232 Cal.App.4th 294
The Court of Appeal lacks jurisdiction over an appeal from a denial of a new trial motion, regardless of whether the appealing party has also properly appealed from an order granting another party’s new trial motion.

Tabarrejo v. Superior Court (Nov. 24, 2014, 6th Dist.) 232 Cal.App.4th 849
As long as a suspended corporation timely files a notice of appeal, the appellate court retains jurisdiction throughout the appeal, even if the suspended corporation never revives, or even attempts to revive, its corporate status during the appeal.



pursuant to New York DR 2-101(f)

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