While we have the utmost respect for the courts, at the Law Office of Kevin Lemieux we know that sometimes judges make mistakes or just flat out decide cases wrong. When this happens, you can appeal your case to the California Court of Appeal and ask the Court of Appeal to review the trial judge’s decision in your case. If the Court of Appeal agrees that the trial court made a harmful error in your case, then the Court of Appeal may change the trial court’s ruling. If you are unhappy with the outcome of your San Diego family law, divorce or juvenile dependency case, our Family Law Appellate Attorney can represent you in your appeal to the California Court of Appeal.
What is an appeal?
An appeal is when a party to a case disagrees with the outcome in the trial court and asks a higher court to review the trial court’s decision. The Court of Appeal will review your case to see if the trial court made any mistakes and whether those mistakes affected the outcome of your case.
What is a Writ?
A writ is also a request for the Court of Appeal to review the trial court’s decision, but writs are used in emergency situations or in situations where time is of the essence. Writs are only authorized in very limited circumstances—but if a writ is authorized by statute, your writ will happen much faster than a standard appeal.
What can you appeal?
In family law and juvenile dependency cases most orders can be appealed right after they are made, so if you disagree with the trial court’s ruling in your case, then call the Law Office of Lemieux today to begin the appeal process.
Who can appeal?
You must be an aggrieved party to file an appeal. Being an aggrieved party means the trial court made an order that affects your legal rights or costs you money.
When can you file an appeal?
Family Law – If the court’s clerk or any parties file a Notice of Entry of Judgment, then you have 60 days from the date of the filing of Notice of Entry of Judgment to appeal the order or judgment. (Cal. Rules of Court, rule 8.104(a).) If neither the court’s clerk nor any party files a Notice of Entry of Judgment, then you have 180 days from the date that the court’s order or judgment was filed to appeal the court’s order of judgment. (Cal. Rules of Court, rule 8.104(a)(1)(C).)
Juvenile Dependency – Most juvenile dependency court orders can be appealed within 60 days of the date the order is made. (Cal. Rules of Court, rule 8.406(a).) However, if the court sets a hearing to select a permanent plan under Welfare and Institutions Code section 366.26 and you were present in court when the court set the hearing, then you have only seven (7) days to file your Notice of Intent to File a Writ Petition with the juvenile court. However, there are a few scenarios that may afford you more than seven (7) days. In certain situations, the deadline to file your Notice of Intent to File a Writ Petition can be 12, 17, or even 27 days after the trial court made its order. (Cal. Rules of Court, rule 8.450(e).)
Because the timelines for appealing the trial court’s orders can vary and be blurry at times, it is important that you contact the Law Office of Kevin Lemieux regarding your appeal or writ as soon as possible to ensure that you do not miss the deadline to appeal the ruling in your case.
What will the Court of Appeal consider?
The trial court hears the evidence at trial and makes factual determinations, and then applies the law to the facts. The Court of Appeal will not disturb the trial court’s factual findings so long as they are supported by substantial evidence. More commonly the Court Appeal will review the trial court’s application of the law to the facts. If the Court of Appeal finds that the trial court ruled incorrectly, then the Court of Appeal will take action to correct the trial court’s mistake.
Standards of Review
The Court of Appeal will review the trial court’s orders under different standards of review depending on the type of ruling the trial court made. The three most common standards of review are (1) abuse of discretion, (2) substantial evidence, and (3) de novo.
Abuse of discretion – The Court of Appeal applies the abuse of discretion standard of review when if the trial court’s order involves the court exercising discretion. Examples of court orders that require the court to exercise discretion include rulings on the admissibility of evidence or issuance of restraining orders. A trial court abuses its discretion when it makes an order that is arbitrary or absurd.
Substantial evidence – The Court of Appeal applies the substantial evidence standard of review when reviewing the trial court’s findings of fact. The Court of Appeal will review the trial court’s findings of fact to make sure they are actually supported by substantial evidence. The test to determine if a factual finding is supported by substantial evidence is whether a reasonable trier of fact would make the challenged ruling after considering the whole record.
De novo – The Court of Appeal applies the De novo standard of review when reviewing questions of law such as interpretation of a statute. De novo is Latin for “in the beginning.” In a de novo review, the Court of Appeal does not defer to the trial court’s findings, but instead considers the issue as if the trial court never ruled on it.
Review in the California Supreme Court
You may ask the California Supreme Court to review your case if you disagree with the Court of Appeal’s ruling. The Court of Appeal’s ruling becomes final 30 days after the filing of the opinion, grant of publication, or the modification of the opinion with a change of judgment. Once the Court of Appeal’s ruling becomes final, you have 10 days to file a petition for review in the California Supreme Court. (Cal. Rules of Court, rule 8.264(b), 8.500(e).)
At the Law Office of Kevin Lemieux, we understand that you may disagree with the court’s ruling in your case and may want to appeal your case to the California Court of Appeal. Navigating the Court of Appeal and pursuing a family law or juvenile dependency appeal can be intimidating, painstaking, and complicated. It is important you are represented by a skilled Family Law Appellate Attorney in order to make the strongest possible argument on your behalf. At the Law Office of Kevin Lemieux, we stand ready to represent you on your family law or juvenile dependency appeal.