The Notice of Appeal Is Deemed Filed When the Clerk Receives It...

Timothy Kowal, Esq.
  •  
April 15, 2021

... not when the clerk happens to get around to filing it.

In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date of filing is a matter of life or death to an appeal.

So what happens if you submit the notice of appeal timely, but the clerk does not actually "file" it until it is untimely?

Answer: Don't worry, the notice of appeal is deemed filed when the clerk receives it. You are not responsible for heaven-knows-what the clerk does with it after that.

J.M v. Los Angeles County Dept. of Children and Family Services (D2d2 Apr. 12, 2021) no. B305486 (not published), involved a drug-and-alcohol-abusing father who took care (in a very loose sense) of his three small children after mother, who, not to be outdone, abused even worse drugs, beat the kids with a cord, and ultimately got herself incarcerated. Father, fancying himself rather more stoical, styled his drug abuse as the "I can quit anytime I want" variety, though with desire never quite toggling to the on position.

Father never did dry out, and ultimately the trial court ordered the children removed from his custody. Father appealed.

Appellant filed his notice of appeal on the 56th day of the 60-day window to appeal. But the Superior Court clerk apparently refused to "file" the notice of appeal. Instead, the clerk demanded "one appeal per child." (No explanation given, either by the clerk or the Court of Appeal. There is no CCP or Rule of Court I am aware of that requires this. But clerks sometimes have strong, inexplicable, immovable opinions about certain things.)

Father promptly complied. But the clerk did not get around to "filing" the notices of appeal until March 17 – one day after the 60-day window to appeal expired.

Held: The appeal was timely. Fortunately, neither appelants' right to appeal nor the Court of Appeal's jurisdiction are at the mercy of a clerk's filing idiosyncrasies:

"We deem Father's appeal to be timely filed. A notice of appeal delivered “within the requisite period and rejected by the clerk for reasons having nothing to do with timeliness” satisfies court rules. (Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 769–770 [rejected appeal bore the wrong case number].) “The act of delivering the document to the deputy clerk at the court during office hours constituted the act of filing.” (Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172; Cal. Rules of Court, rule 8.25(b)(1) [“A document is deemed filed on the date the clerk receives it.”].)"

But, it availed father nothing. As to the merits, the order stands.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.