Preserving appellate record retail California disputes require starts long before a notice of appeal is ever filed. By the time a summary judgment motion is fully briefed and argued, the factual and legal record an appellate court will review is largely locked in. The Homampour Law Firm's handling of the parking lot fire appeal before the California Court of Appeal, Second Appellate District, illustrates how the choices made at the trial court level determine what arguments remain available on appeal.
De novo
Standard of review for a California summary judgment appeal
60 days
Jurisdictional deadline to file a notice of appeal
Appeals from summary judgment in California are reviewed de novo, meaning the Court of Appeal independently examines the record without deference to the trial court's reasoning. That standard is favorable to appellants in one sense, because the appellate court is not simply checking for abuse of discretion. But it also means the entire dispute plays out on the paper record: declarations, deposition excerpts, exhibits, and the separate statements of undisputed and disputed facts submitted under Code of Civil Procedure section 437c. If a critical fact, such as an employee admission about observing fireworks in a parking lot over multiple years, was not properly presented through an admissible declaration or deposition excerpt at the trial court, that fact functionally does not exist for appellate purposes, no matter how compelling it might be. Practitioners must treat the opposition to summary judgment as if it were the only chance to build the record, because in a meaningful sense it is.
In premises and property damage cases governed by the Rowland v. Christian and Cabral v. Ralphs Grocery Co. duty framework, the separate statement opposing summary judgment should be organized around the broad-generality duty question, not just the narrow facts of the specific incident. In this appeal, the record needed to establish, item by item, the pattern of fireworks use over multiple years, the retailer's own employees' awareness of that pattern, and the fire department's independent documentation of the same recurring conduct. Each of those facts needed its own citation to admissible evidence in the record, because the Court of Appeal's reversal depended on the undisputed facts, viewed at the correct level of generality, failing to support a no-duty finding.
A frequently overlooked part of preserving an appellate record is making, and obtaining rulings on, evidentiary objections at the trial court level. An appellate court generally will not consider an evidentiary argument raised for the first time on appeal, so any objection strategy has to be executed while the summary judgment motion is still pending below.
A notice of appeal must generally be filed within 60 days after the superior court clerk serves notice of entry of judgment, or 60 days after any party serves notice of entry, whichever occurs first. This deadline is jurisdictional, and missing it even by a single day can permanently foreclose an otherwise winning appeal.
The court found the trespass argument that the spread of a negligently set fire to the land of another constitutes a trespass had been raised for the first time in the reply brief and was therefore forfeited absent good cause. Every substantive argument needs to appear in the opening brief.
Because review was de novo and confined to the paper record, the reversal depended on facts built into the trial court opposition, each tied to admissible evidence.
The case behind this page
The full story of the facts and outcome that a preserved record made possible.
Read the case study describing the parking lot fire litigationRelated strategy
How the correct level of generality under Cabral turns a no-duty win into reversible error.
How the duty question is reframedRelated breakdowns from this appeal and our premises and property damage practice.
We evaluate whether a trial court record supports an appeal in premises, product, and property damage cases, as counsel or co-counsel, and pay statutory referral fees.
Refer a caseCalifornia appellate courts review summary judgment rulings de novo, meaning they independently examine the record without deference to the trial court's legal conclusions, though they are still bound by the factual record the parties created below.
Because appellate review of summary judgment is confined to the paper record created at the trial court, any fact not properly supported by an admissible declaration, deposition excerpt, or exhibit at that stage is effectively unavailable to the appellate court later.
Generally 60 days after the superior court clerk serves notice of entry of judgment, or 60 days after any party serves notice of entry, whichever is earlier. This is a jurisdictional deadline, so it should be calendared immediately upon entry of an adverse judgment.
