60-Day Deadline to Appeal Not Triggered by Minute Order

Timothy Kowal, Esq.
November 10, 2021

You know that the 60-day deadline to appeal starts the moment the clerk or a party serves either a notice of entry or a "filed-endorsed copy of the judgment, showing the date either was served." (Rules of Court, rule 8.104(a)(1)(A).) So what happens when the clerk serves a 23-page minute order granting an anti-SLAPP motion, along with a certificate of mailing? The judge clearly has decided the anti-SLAPP motion, which is an appealable order. The certificate shows the date of service. So the 60-day period starts running, right?

Wrong, says the Second District in Nejad v. Abernathy (D2d4 Nov. 1, 2021) 2021 WL 5049091 (nos. B304481, B307759) (nonpub. opn.). Rule 8.104 is read literally. There was no document titled "Notice of Entry," and no file stamp on the minute order. Thus, service with the minute order was insufficient to trigger the 60-day deadline.

The court cited *Sunset Millennium Associates, LLC v. Le Songe, LLC* (2006) 138 Cal.App.4th 256, 259-260, which held the 60-day deadline was not triggered by the clerk's service of a minute order, despite the fact the minute order stated the words “notice of entry” — albeit on page 13 of the 14-page document.

And as the California Supreme Court noted in the key case on determining whether an order is appealable, Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, at page 903: "courts have consistently held that the required "document entitled `Notice of Entry'" (rule 8.104(a)(1)) must bear precisely that title, and that the "file-stamped copy of the judgment" ( ibid.) must truly be file stamped" [citations]."

Sunset Millennium is a good case to bookmark. The 14-page order granting an anti-SLAPP motion stated the words "notice of entry" inside the document. That was not good enough. "Because the 14-page minute order was not entitled "notice of entry," we deny defendant's dismissal motion." (Sunset Millennium, supra, 138 Cal.App.4th at p. 257.) Merely including the words "notice of entry" inside the document "does not comply with the literal requirement that the document providing notice of entry be so entitled." (Id. at p. 259.) "Within reason, rule 2 [now rule 8.104] is read literally." (Id. at p. 260 (citing In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 686 [ 36 Cal.Rptr.3d 286]; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672 [ 33 Cal.Rptr.2d 674] [rule 2 "must stand by [itself] without embroidery"]; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1122-1123 [ 6 Cal.Rptr.2d 224] [change in rule 2 read "literally"]).)

Still, I would not chance it. If you have an appealable order, why wait to appeal? True, the California Supreme Court in Alan v. American Honda held that "the rule does not require litigants ... to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal." And the Court there held that an appealable minute order did not trigger the 60-day period because it was not stamped. But Alan v. American Honda also stated that even in cases where an order is not technically appealable, "Reviewing courts have discretion to treat [such orders] as appealable when they must" (for example, when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits). (Alan v. American Honda, supra, 40 Cal.4th at p. 901.) So if the analysis is ultimately discretionary, how long before a court realizes that file-stamps on minute orders are implied given such orders are creatures of the court's file in anyway?

(See more on appeals from minute orders here.)

If you are in doubt, you may want to consult with an appellate attorney.

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. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.