A trial court enters judgment. One party is unhappy with part of the result and decides to appeal. But the opposing party also believes another part of the judgment went wrong. Both sides now want the Court of Appeal to review different aspects of the same case.
That situation can lead to a cross-appeal. A cross-appeal allows a respondent who also seeks appellate relief to challenge an adverse aspect of the judgment. It is different from simply defending the judgment through a respondent’s brief.
The distinction matters. A respondent who only wants to defend the judgment can often do so through its brief. But a respondent who wants the appellate court to change the judgment or grant additional relief may need to file a cross-appeal. Missing that step, or missing the applicable deadline, can affect the relief the party may obtain.
Kassouni Law represents clients in California appellate matters involving civil judgments and complex legal disputes. For more on California appellate procedure generally, see the firm’s appeals practice.
What Is a Cross-Appeal in California?
A cross-appeal is a notice filed by a respondent to invoke the appellate court’s jurisdiction over a portion of the judgment that adversely affects the respondent. It is, in effect, an appeal filed by the party who is also defending against the other side’s appeal.
In California, the notice of a cross-appeal is governed by the same rules as a notice of appeal. California Rules of Court, rule 8.100(f), provides that as used in that rule, “notice of appeal” includes a notice of cross-appeal, and “appellant” includes a respondent filing a notice of cross-appeal. This means the requirements for filing, serving, and paying fees for a notice of cross-appeal mirror those for a notice of appeal.
Understanding who the parties are helps clarify the relationship:
- Appellant: The party who files the first appeal. The appellant believes the trial court made an error requiring correction.
- Respondent: The party responding to the appeal. The respondent may defend the judgment as entered, or may also seek changes of its own.
- Cross-appellant: A respondent who files a cross-appeal becomes a cross-appellant with respect to the issues the cross-appeal raises.
For more on how appellant and respondent roles work in California, see the firm’s article on appellant vs. appellee in California.
When Does a Respondent Need to File a Cross-Appeal?
This is the central question. The answer depends on what the respondent is trying to accomplish.
Defending the Judgment: No Cross-Appeal Required
A respondent who simply wants to defend the trial court’s judgment does not need to file a cross-appeal. The respondent can argue in its brief that the trial court reached the correct result, that the appellant’s arguments fail, or that the judgment should be affirmed on alternative grounds. None of those arguments require a cross-appeal.
For example: the respondent argues the trial court correctly applied the law, or that the same result would follow even under a different legal analysis. A respondent can also point to evidence that supports the judgment. These are all affirmance arguments, not requests for affirmative relief.
Seeking Affirmative Relief: A Cross-Appeal Is Generally Needed
If the respondent wants the appellate court to do something more than affirm the judgment as entered, the situation is different. A respondent generally cannot use its brief to obtain a change in the judgment without properly invoking appellate jurisdiction through a cross-appeal.
Examples of situations that typically require a cross-appeal:
- The respondent lost on a portion of the case and wants the appellate court to award additional damages.
- The trial court rejected one of the respondent’s claims, and the respondent wants that ruling reversed.
- A separate adverse ruling was entered against the respondent, and the respondent wants it reviewed.
- The respondent seeks an increase in an award, a different judgment on a specific issue, or other affirmative relief from the appellate court.
Whether a cross-appeal is required in a specific situation depends on the relief sought, the issues involved, and the applicable California authority. When in doubt, consulting appellate counsel before the deadline is the right approach.
Appeal vs. Cross-Appeal in California
Both an appeal and a cross-appeal are initiated by a notice filed with the superior court and sent to the Court of Appeal. But they arise in different situations and serve different purposes.
Appeal: Filed by a party who believes the trial court erred and seeks to change the judgment or order. The appellant is the party challenging the result.
Cross-appeal: Filed by the respondent who also believes the trial court erred on a different issue. The cross-appellant is the party who lost something else and wants review of that separate adverse aspect.
The practical differences:
- An appeal starts the appellate proceeding. A cross-appeal expands the issues before the appellate court.
- An appeal is filed by the aggrieved party. A cross-appeal is filed by the party who was also aggrieved, in a different way.
- Succeeding on an appeal may result in a different judgment or remand. Succeeding on a cross-appeal could also change the judgment, in the cross-appellant’s favor on its issues.
- Both require separate notices filed with the superior court within applicable deadlines.
What Can a Respondent Raise Without a Cross-Appeal?
A respondent can raise several categories of arguments without filing a cross-appeal. The key is that those arguments support affirmance, not a change in the judgment.
Arguments Supporting Affirmance
A respondent can argue that the trial court reached the correct result even if it used the wrong reasoning. This is sometimes called an alternative grounds argument. If the appellate court agrees the judgment was correct, it can affirm on any ground supported by the record, even one the trial court did not reach.
A respondent can also challenge the appellant’s legal theories, argue the evidence supports the judgment, and raise procedural arguments that support affirmance.
Arguments That Generally Require a Cross-Appeal
If the respondent wants the appellate court to go further than simply affirming, a cross-appeal is typically necessary. Consider these examples:
- Increasing an award: The trial court awarded $100,000 but the respondent believes $200,000 was warranted. Seeking the higher award means asking the court to change the judgment. That generally requires a cross-appeal.
- Reversing a separate adverse ruling: The respondent won the main case but lost a motion for attorney’s fees. Seeking reversal of the fee ruling requires a cross-appeal.
- Challenging a rejected claim: The respondent prevailed on one theory but the trial court rejected another. If the respondent wants the rejected theory reinstated, it must cross-appeal.
The line between defending and seeking affirmative relief is not always sharp. When it is unclear, appellate counsel can help evaluate whether a cross-appeal is necessary to protect the respondent’s interests.
California Cross-Appeal Deadlines
Deadlines for notices of appeal and cross-appeal are jurisdictional in California. A late filing cannot be accepted by the court, and no extension is available. Getting the deadline right is critical.
The Base Deadline
Under California Rules of Court, rule 8.104(a)(1), a notice of appeal in an unlimited civil case must be filed by the earliest of: 60 days after the clerk serves a document titled “Notice of Entry” of judgment (or a file-stamped copy showing the service date); 60 days after any party serves or is served with such a document; or 180 days after entry of judgment. Because appeal deadlines are jurisdictional, no court may extend them. See rule 8.104(b).
The Cross-Appeal Extension
When a timely first appeal is filed, other parties get additional time. Under California Rules of Court, rule 8.108(g), when an appellant timely appeals, the time for any other party to appeal from the same judgment is extended until 20 days after the superior court clerk serves notification of the first appeal.
The 20-day extension runs from the date the clerk sends notification of the first appeal, as confirmed by the Advisory Committee Comment to rule 8.100. The notification date is shown on the clerk’s notice, which is why parties should preserve the date they receive it.
Importantly, this 20-day extension does not shorten the time available under the base deadline. Rule 8.108 only operates to extend the time to appeal beyond rule 8.104. If the base deadline under rule 8.104 is longer than 20 days after the clerk’s notification, the base deadline controls.
For a broader discussion of California appellate timing, see the firm’s article on how long a California civil appeal takes.
Protective Cross-Appeals
A protective cross-appeal is filed as a precaution to preserve appellate rights in case the judgment is modified on the other side’s appeal. If the trial court granted a motion that adversely changed the judgment, the respondent may need to cross-appeal the original judgment to preserve its right to seek review.
Whether a protective cross-appeal is appropriate depends on the specific procedural posture of the case. Appellate counsel can evaluate whether the circumstances call for one.
How Does a Cross-Appeal Affect the Appellate Record?
Filing a cross-appeal does not automatically create a separate appellate record. The record typically consists of the clerk’s transcript (the paper record of trial court filings) and, where requested, the reporter’s transcript (transcriptions of hearings and testimony). Both sides of the appeal use the same underlying record.
What the cross-appeal may require is identifying and including in the record the materials relevant to the cross-appeal issues. If the cross-appeal raises issues from a hearing not in the original record designation, the cross-appellant may need to designate those transcripts or documents.
For more on how the California appellate record works and what needs to be included, see the firm’s article on the California appeal record.
Reviewing the record to confirm it supports the issues raised in the cross-appeal is part of preparing a cross-appeal. An issue raised in a brief that is not supported by evidence in the record will not be considered on appeal.
How Are Cross-Appeals Briefed?
When both parties seek appellate relief, the briefing sequence becomes more involved. California Rules of Court, rule 8.216 governs appeals in which a party is both appellant and respondent.
The general sequence in a case with both an appeal and a cross-appeal:
- The appellant files its opening brief addressing the issues on appeal.
- The respondent/cross-appellant files a combined brief: responding to the appeal and raising its cross-appeal issues. This document is often called the respondent’s brief and cross-appellant’s opening brief.
- The appellant/cross-respondent files a combined brief: replying to the respondent’s arguments and responding to the cross-appeal. This is often called the appellant’s reply brief and cross-respondent’s brief.
- The cross-appellant may then file a reply brief addressing responses to the cross-appeal issues.
The specific page limits, timing, and procedures for each brief depend on the California Rules of Court applicable at the time. Counsel should verify the current rules before preparing any brief in a case with a cross-appeal.
The practical consequence is that both sides have opportunities to address both the appeal and the cross-appeal, but the briefing must be carefully organized. Each brief must clearly distinguish which issues belong to the appeal and which to the cross-appeal.
What Happens When Both Parties Appeal?
A practical example illustrates how cross-appeals work.
A trial court enters judgment awarding a contractor $150,000 in damages for breach of contract. The court also rules against the contractor on a separate claim for lost profits.
The property owner appeals, arguing the $150,000 award was too high and that the trial court applied the wrong legal standard for damages. The contractor believes the $150,000 was too low and also wants review of the lost profits ruling.
The contractor files a cross-appeal raising both issues. Now the Court of Appeal must address:
- The property owner’s appeal: whether the damages award should be reduced or the legal standard was wrong.
- The contractor’s cross-appeal: whether the damages should be increased and whether the lost profits ruling should be reversed.
Each set of issues is analyzed separately. The appellate court applies the applicable standard of review to each issue. Resolving one set of issues does not automatically resolve the other.
The court will only address issues that were properly raised, adequately briefed, supported by the record, and preserved in the trial court proceedings.
Why Filing a Cross-Appeal Can Matter
Preserving the Right to Appellate Relief
A party who wants the appellate court to change the judgment must invoke the court’s jurisdiction to do so. Without a proper cross-appeal, the appellate court may lack authority to grant affirmative relief to the respondent on those issues.
Expanding the Issues the Court Can Address
A cross-appeal lets the respondent place its own issues before the court. Without it, the respondent is limited to arguments that support affirmance of the judgment as entered.
Avoiding Procedural Problems
Failing to file a cross-appeal when required can prevent the respondent from obtaining the relief it seeks, even when its underlying arguments are strong. The procedural requirement is not a technicality. It reflects the need to give the other side notice of what issues are being raised on appeal.
Supporting Appellate Strategy
Early in the appellate process, a party should determine whether it only wants to defend the judgment or also wants changes of its own. That decision shapes the entire appellate strategy, from whether to file a cross-appeal to how to organize the briefing.
Common Mistakes in California Cross-Appeals
Cross-appeals involve several procedural requirements, and small mistakes can affect a party’s ability to obtain appellate relief. Common mistakes include:
- Assuming a respondent can obtain any relief through its brief. A respondent seeking affirmative relief generally needs a proper cross-appeal, not just arguments in a brief.
- Missing the notice deadline. Both the base deadline and the 20-day extension from the clerk’s notification are jurisdictional. A late cross-appeal cannot be accepted.
- Confusing an affirmance argument with a request for affirmative relief. Arguing that the trial court reached the right result for different reasons does not require a cross-appeal. Asking for more or different relief does.
- Failing to identify all adverse portions of the judgment. A cross-appeal covers only what the cross-appellant actually challenges. Missing an adverse ruling can forfeit review of it.
- Assuming every adverse trial court ruling requires a cross-appeal. Some rulings that are unfavorable to the respondent may not independently require a cross-appeal to raise on appeal, depending on how they relate to the judgment.
- Ignoring appellate jurisdiction. The appellate court can only address issues over which it has jurisdiction. A cross-appeal must properly invoke that jurisdiction.
- Failing to preserve an issue at trial. Issues not raised in the trial court are generally not available on appeal, regardless of whether a cross-appeal is filed.
- Relying on an outdated deadline. The California Rules of Court can change. Verify the current applicable rules before the deadline passes.
- Failing to review the appellate record. An issue raised on cross-appeal must be supported by evidence in the record.
- Treating the cross-appeal as a completely separate case. The cross-appeal and the original appeal proceed together. The record is shared. The briefing is coordinated. The cases are not independent.
Cross-Appeals and Standards of Review
Different issues on appeal and cross-appeal may receive different standards of review. The appellate court applies the appropriate standard to each issue independently.
De novo: The appellate court independently evaluates questions of law, including statutory interpretation, contract interpretation, and constitutional questions. No deference is given to the trial court.
Substantial evidence: Factual findings are reviewed to determine whether substantial evidence supports the trial court’s conclusion. The appellate court does not reweigh the evidence.
Abuse of discretion: Discretionary rulings by the trial court are reversed only when the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner.
A cross-appellant should identify the applicable standard of review for each issue being raised. The standard affects both how the issue is framed and the likelihood that the appellate court will grant relief.
What Happens If a Party Does Not Cross-Appeal?
A respondent who does not file a cross-appeal can still defend the judgment. Many respondents succeed on appeal without filing a cross-appeal because they are simply arguing the trial court got it right.
But a respondent who needed a cross-appeal and did not file one may find that the relief it sought is unavailable. The appellate court may affirm on the issues properly before it on the original appeal, without addressing the respondent’s grievances about other portions of the judgment.
Whether failing to cross-appeal forfeits a particular argument depends on the nature of the argument, the relief sought, and applicable California authority. Not every failure to cross-appeal results in a complete bar. But the risk is real, and the prudent approach is to evaluate early whether a cross-appeal is needed.
What to Do When Both Sides May Appeal
If both sides may challenge different parts of a judgment, taking a few early steps can help preserve appellate options:
- Obtain the final judgment and notice of entry. Know exactly when the judgment was entered and when notice was served.
- Identify every portion of the judgment that may affect your interests. Review the judgment carefully, including any rulings on fees, costs, or other matters separate from the main award.
- Check the applicable notice-of-appeal deadlines. Confirm the current rules under California Rules of Court, rules 8.104 and 8.108.
- Determine whether you are defending the judgment or seeking affirmative relief. This decision shapes whether a cross-appeal is necessary.
- Review whether a cross-appeal is required. If any portion of the judgment adversely affected you, evaluate whether raising it requires a cross-appeal.
- Preserve relevant trial court documents and communications. The appellate record is built from what happened in the trial court.
- Review the appellate record. Confirm that the record includes the materials needed to support the issues you want to raise.
- Identify the issues that need appellate review. Be specific. Vague or undeveloped arguments are less likely to succeed on appeal.
- Check applicable California Rules of Court. Rules can change. Verify the current requirements before filing anything.
- Speak with appellate counsel before a deadline expires. Appellate deadlines are jurisdictional. Once they pass, the option may be gone.
For more on the initial steps of filing an appeal in California, see the firm’s article on how to file an appeal in California.
Questions About a California Appeal or Cross-Appeal?
A party should identify early whether it only needs to defend the judgment or also seeks affirmative appellate relief. That determination, combined with careful attention to deadlines and the applicable California Rules of Court, shapes what options remain available on appeal.
Kassouni Law represents clients in California appellate matters involving civil judgments and complex legal disputes. If you are considering an appeal or cross-appeal, legal counsel can help evaluate the judgment, deadlines, and available appellate options.
Contact Kassouni Law at 877-770-7379 or submit an inquiry at kassounilaw.com/contact. Submitting a contact form does not create an attorney-client relationship.
Frequently Asked Questions
Can a respondent file a cross-appeal in California?
Yes. A respondent who wants to seek affirmative relief from the appellate court on a different portion of the judgment can file a cross-appeal. Under California Rules of Court, rule 8.100(f), a notice of cross-appeal is treated the same as a notice of appeal for purposes of filing requirements.
What is the deadline to file a cross-appeal in California?
The base deadline is the same as for a notice of appeal under California Rules of Court, rule 8.104: generally 60 days after the clerk or a party serves a notice of entry of judgment, or 180 days after entry of judgment if no such notice has been served. Rule 8.108(g) extends the time for other parties to appeal until 20 days after the superior court clerk serves notification of the first appeal. Deadlines are jurisdictional. No court may extend them.
Can a respondent raise issues without filing a cross-appeal?
Yes, in some circumstances. A respondent can argue the trial court reached the correct result, that the appellant’s arguments fail, or that the judgment should be affirmed on alternative grounds. These affirmance arguments do not require a cross-appeal. A respondent who wants the appellate court to change the judgment, increase an award, or reverse an adverse ruling generally needs to file a cross-appeal.
What is the difference between an appeal and a cross-appeal?
An appeal is filed by the party challenging the judgment. A cross-appeal is filed by the opposing party to also seek review of a different adverse portion of the same judgment. Both require separate notices filed within the applicable deadlines. Both place issues before the Court of Appeal, but each side’s issues are analyzed separately.
Does a cross-appeal delay the original appeal?
Filing a cross-appeal can affect the briefing schedule because the parties must address both sets of issues in their briefs. The combined briefing sequence under California Rules of Court, rule 8.216, typically involves more briefs than a standard appeal. That may extend the overall timeline, though the cross-appeal itself does not automatically pause the original appeal.
Can both parties appeal the same judgment?
Yes. One party files a notice of appeal; the other files a notice of cross-appeal. Both appeals proceed together before the same Court of Appeal. The cases are not independent. The parties share the same appellate record, and the court addresses all properly raised issues from both sides.
What happens if a party misses the cross-appeal deadline?
Because notice-of-appeal deadlines are jurisdictional in California, a late cross-appeal cannot be accepted by the court. The party may be limited to defending the judgment on the existing appeal rather than seeking affirmative relief on its own issues. No court may extend the deadline.
Can a cross-appeal challenge a different part of the judgment?
Yes. That is typically what a cross-appeal does. The original appellant challenges one aspect of the judgment. The cross-appellant challenges a different adverse aspect. The appellate court may then address both sets of issues, subject to proper preservation, briefing, and support in the record.
This article provides general legal information about California cross-appeal procedure and does not constitute legal advice. California appellate procedure, deadlines, and applicable rules can vary depending on the type of case, the court, and the specific circumstances. No attorney-client relationship is created by reading this content. Please consult a qualified California appellate attorney for advice about your specific situation.
