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When Should You Cross-Appeal?

ThinkstockPhotos-463518799Missing an opportunity to cross-appeal can be a big mistake. Ordinarily, if you’re on the winning side in the trial court, there’s no need to file a cross-appeal. But there are situations in which filing a cross-appeal is not only appropriate but critical.

First, let’s define the term “cross-appeal”: It means any subsequent appeal by any party filed after the first appeal in a case. See Cal Rules of Ct 8.108(g). It all comes from the same judgment or order, the terminology just refers to what was filed first.

The winner in the trial court (the respondent on appeal) is generally looking to preserve the judgment that the appellant is attacking. But when you’re the respondent you may need to file a cross-appeal under certain circumstances.

Here are a couple of situations in which a cross-appeal is needed:

To change the judgment. You should file an independent cross-appeal when you’re seeking to change the judgment. If you intend to argue that the appellate court should change the judgment or order or that the case should be sent back to the trial court for further proceedings, you have to file a notice of cross-appeal. In other words, if you’re seeking affirmative relief, file a cross-appeal.

To attack the judgment. When you’re attacking the judgment with a post-trial motion, you need to file a protective cross-appeal. Here’s how this comes up: The judgment was against you, but you prevailed on a posttrial motion, such as a new trial motion. You’ll want to appeal from the original judgment, just in case the posttrial order is overturned on appeal. Although the time for appealing from entry of the judgment will undoubtedly have lapsed, California Rules of Court 8.108(g) provides for an extension of time under this circumstance. Not filing a protective cross-appeal is a common mistake; more often than one would expect, a cross-appeal isn’t filed, and the court is forced to reinstate the judgment when the order granting a new trial is reversed.

The procedure for filing a cross-appeal is set out primarily in Cal Rules of Ct 8.108(f). That rule extends the time for a party to file a notice of appeal until 20 days after the clerk mails notification that another party has filed a notice of appeal. This time allows a party who is ambivalent about appealing to wait to make a final decision until after the opponent appeals, and permits the party who has obtained an order for new trial to file a protective cross-appeal from the judgment if the posttrial order is later reversed on appeal.

Except for the time extension, the procedural rules for cross-appeals are generally the same as for appeals. See Cal Rules of Ct 8.100(f). Because there are really two appeals in a cross-appeal situation, additional appellate briefs are permitted.

For everything you need to know about filing cross-appeals, turn to CEB’s California Civil Appellate Practice, chap 8.

Other CEBblog™ posts on appeals:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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