This post is the fourth in an ongoing series about maximizing a party’s chances of prevailing on appeal. The unpublished decision by the Third Appellate District in Martel v. Litchfield (Dec. 4, 2013 C068425) provides four glaring examples of how violating procedural appellate rules can affect the outcome of an appeal. In Martel, the court of appeal reviewed the dismissal of a lawsuit for intentional infliction of emotional distress. The facts of the case were a little convoluted. From the opinion:
In a prior lawsuit, Richard Martel sued his former girlfriend. Attorney Robert Litchfield represented the girlfriend in that action. Martel subsequently sued Litchfield based on communications and court documents created during the litigation between Martel and his girlfriend. Litchfield ultimately filed a first amended cross-complaint against Martel, alleging, among other things, that Martel intentionally inflicted severe emotional distress on Litchfield by making prank phone calls to Litchfield’s law office, leaving obscene, threatening and abusive telephone messages and e-mails for Litchfield, and slashing Litchfield’s car tire. The trial court sustained Martel’s demurrer to Litchfield’s first amended cross-complaint without leave to amend.
The appeal presents four procedural mistakes that prevented claims from being heard on their merits.
First, Litchfield argued that the trial court abused its discretion by not providing Litchfield a second opportunity to amend his pleading. The Court of Appeal noted that Litchfield had not set forth a proposed amendment of his claims at either the trial or appellate level. Having failed to set forth a proposed amendment, the court found that Litchfield failed to carry his burden on appeal of demonstrating abuse of discretion.
Second, Litchfield sought review of the denial of his motion to disqualify the trial judge pursuant to Code of Civil Procedure, section 170.1. Litchfield, however, had failed to file a petition for writ of mandate. Such a petition is the exclusive means of reviewing such a motion. (Code Civ. Proc., § 170.3, subd. (d).) Therefore, the court did not reach this issue.
Third, Martel’s respondent’s brief on appeal failed to cite any legal authority or citations to the record. The brief also referred to matters outside the appellate record. On that basis, the court simply disregarded Martel’s respondent’s brief.
Fourth, Martel requested that Litchfield pay Martel monetary sanctions for filing a frivolous appeal. The court of appeal noted that Martel had not filed a separate motion for sanctions but simply made the request at the conclusion of his brief. The court also noted that Martel had not requested sanctions in a separate heading within his respondent’s brief supported by legal argument and citation to authority. The sanctions request was, therefore, never reached on the merits.
These are four examples of procedural rule violations that ultimately impacted the outcome of the appeal. Retaining an appellate specialist as your counsel or co-counsel on appeal can help minimize these distracting and sometimes costly procedural gaffes. Don’t wing it, win it. Next time you have an appeal, consider retaining a certified appellate specialist to assist you.