Failure to timely file a notice of appeal is fatal. There is no relief. Sixty days is a long time. But is the clock ticking? When did it start to run? When does it run out? Are you sure?
Under California Rules of Court,rule 8.104, the clock starts ticking when either of two things happens: the clerk mails or a party serves - a document entitled “notice of entry” of judgment or a file-stamped copy of the judgment. If it is the clerk, the document must show the date it was mailed. If a party, the document must be accompanied by a proof of service. The 60-day deadline starts running from the mail (clerk)/service (party) date. But if neither the clerk mails nor the party serves notice, a 180-day “outer limit” is allowed to file the notice of appeal. Warning, it is rare that no notice occurs, so proceed with extreme caution.
The 60 day time limit is also subject to extension under rule 8.108. Under that rule, timely and valid motions for new trial, to vacate judgment, JNOV, and to reconsider an appealable order, can result in extensions. But if there is a procedural minefield, this is the place. And the mines explode with surprising frequency. When they do, there are no survivors.
The decision in Branner v. Regents of The University of California (2009) 175 Cal.App.4th 1043 is instructive. There, the Third District dismissed an appeal filed after the normal 60 days had run from notice of entry of an order ruling on a special motion to strike. Branner held that a “valid” motion to reconsider, as that term is used in rule 8.108(e), means full compliance with the procedural requirements for the underlying motion. Branner’s failure to provide the declaration that Code of Civil Procedure section 1008 required, barred extension of time to appeal. And his subsequent filing of the declaration could not save the day because, as the appellate court put it, “a single, complete, valid motion must be filed – not one that is later assembled from constituent parts like some Frankenstein monster.” Notice that a trial court document, in this case a motion to reconsider, can undo an appeal.
Extensions of time and related pitfalls aside, what does a document triggering the normal time to appeal look like? All that is required is either a file-stamped copy of the judgment or a document entitled “notice of entry of judgment.” And a notice of entry qualifies even with technical defects, such as a misstatement of the judgment date. Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 85-86.
Does the serving party have to prove that other parties actually received notice? The case law says no. Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360. But, improper service, such as mailing to an incorrect address or wrong zip code will not start the clock. Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 511; Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288. Traditional mail has long been the accepted method and service is complete at the time of deposit in the mail. CCP § 1013a.
But email service is an evolving area. In Citizens for Civic Accountability v. Town of Danville (2008) 167 Cal.App.4th 1158, the parties were electronically served by LexisNexis with a message stating that judgment had been filed. The First District held that email, as opposed to snail mail, does not satisfy the statutory requirement of rule 8.104(a)(1) because it is not within the legislative meaning of “superior court clerk mails” and to allow otherwise “create[s] a trap for the unwary.” In contrast, the Sixth District concluded in Insyst v. Applied Materials (2009) 170 Cal.App.4th 1129, 1130, that a clerk can email a judgment or notice of entry of judgment, but that merely providing a link to one of those documents is insufficient. Insyst rejected the notice of appeal trigger because “an e-mail explanation of where to electronically locate a judgment [is not] the equivalent of the electronic transmission of the document.”
So the clock is ticking, where to file a notice of appeal? Rule 8.100(a)(1) specifies it must be filed in the superior court that issued the judgment or appealable order. And no particular form of notice of appeal is required as long as it is in writing, identifies the “judgment or order being appealed” and is signed by appellant or his/her attorney. The Judicial Council has an easy to use check-the-boxes form – when in doubt, fill it out.
Hopefully, this post provides a framework within which lawyers can readily discern both triggering document and drop dead date. Failing to file a notice of appeal within the prescribed time limit is fatal. Of course, as one appellate court said while dismissing a case due to a late notice of appeal, trial lawyers can always consult “able appellate counsel.” Delmonico,5 Cal.App.4th at 84, fn. 2. For as Presiding Justice David G. Sills said in In re the Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, “appellate work is most assuredly not the recycling of trial level points and authorities.”