Appellate Surprises

Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point.

My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly made after a grant of summary judgment.

Here are the remaining points I think worth bringing out of the case:

The Protective Cross Appeal. Congratulations, you’ve won your new trial motion! Your adversary appeals the grant of a new trial. And if you think you’re going to be disappointed if they prevail on appeal, you’re going to be absolutely horrified if you forgot to file a protective cross-appeal from the underlying judgment.

Forfeiture of Evidentiary Objections. California decisions generally hold that objections to evidence offered in summary judgment are not preserved for appeal unless the objecting party secures a ruling from the trial court. But with the recent development of a split of authority, the Supreme Court has agreed to review the issue.

Affirmance of New Trial Orders on Alternative Grounds. Read that new trial statute (Code Civ. Proc., ยง 657) closely. Section 657 provides, in part, that (emphasis added) “[o]n appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons,” followed by exceptions to this rule.