You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok? (E.g., Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 113 [“[T]he filing of a timely notice of appeal is a jurisdictional prerequisite.”].)
But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.
In Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), the court considered an appeal filed a full 10 months after the judgment. The court did not mention whether a notice of entry or file-stamped copy of the judgment was served to trigger the 60-day deadline. But certainly the deadline was no more than 180 days. So at a minimum, this appeal was filed more than four months late.
The respondent filed a motion to dismiss. The respondent observed that the appellant had taken her appeal 57 days after the notice of entry of the amended judgment (issued eight months after the original judgment).
So ok, on the surface it seemed like the appeal was timely. But the amended judgment merely added costs — the underlying judgment was identical. And obviously you cannot resurrect a jurisdictional timeline merely because a judgment is amended without substantial change. Besides, on appeal the appellant only challenged the underlying judgment — she was not even attacking the cost award, which was the only thing about the amended judgment that was appealable.
But the court disagreed with this argument. And in rather strident terms: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That is the entirety of the analysis on the issue. (The court distinguished some other case on a different issue about saving premature appeals.)
The court went on to affirm the judgment.
Comment: Although the court says “No principle or authority supports the argument,” the Second District is mistaken. The court here is parting ways from the rule in the Fourth District (see my post on the Tiger Loans case here), Fifth District, and even the Second District (and probably others). According to that precedent and principle, the respondent was right: you cannot appeal a ten-month-old judgment by timely appealing a later amendment that merely awards costs.
In fact, another recent case, Pasternak v. Villalon (D4d3 May 12, 2022 no. G060780) (nonpub. opn.), applied this very principle. [Disclaimer: I consulted for the respondent on this case.] The Pasternak court included a lengthy analysis covering various authorities standing for the principle that an amended judgment that does not substantially modify the underlying judgment does not resurrect the time to appeal:
“Villalon’s notice of appeal from the amended judgment was filed on October 15, 2021, which was within 60 days of service of notice of entry of the Amended Judgment but more than 60 days after service of the notice of entry of the original judgment. The notice of appeal from the amended judgment was therefore untimely as to the original judgment.”
This holding follows an unbroken chain of precedents: "It is well settled, however, that "[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected." [Citations.] "When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order." [Citation.] The June 23, 2006 order on attorney fees and costs did not amend the March 6, 2006 judgment in any substantive way. Rather, the judgment was merely modified to add the fees and costs awards. Accordingly, we lack jurisdiction to consider any aspect of the summary judgment ruling." (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 [Fourth District].)
But there appears to be no Supreme Court authority directly on point. So the Second District, it seems, has issued the first minority report on this issue.
In Hurd v. Hurd (D2d2 Feb. 24, 2022 no. B309280) (nonpub. opn.) the appellant filed his notice of appeal more than 60 days after the notice of entry of the judgment. [Disclaimer: I was the respondent’s attorney on this case.] Respondent filed a motion to dismiss the appeal based on the untimeliness.
The appellant opposed, arguing the notice of entry did not attach the judgment, so it was invalid. In rebuttal, the respondent noted that rule 8.104 of the Rules of Court do not require that a notice of entry attach the judgment, and no other authority requires it, either. (In fact, another unpublished Second District case rejected the appellant’s argument that a notice of entry is invalid that does not attach the judgment, resulting in dismissal of the untimely appeal. (Cast v. Kelly (D2d3 Jun. 24, 2021) no. B299797 (nonpub. opn.).)
But the Court of Appeal summarily denied the motion to dismiss and reversed the judgment The court did not address the jurisdictional issue. The court also summarily denied a motion for rehearing. And the Supreme Court summarily denied a petition for review.
The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. These two recent cases rejected motions to dismiss untimely appeals — and rejected them rather dismissively at that. And other courts— including the Supreme Court— have found ways to hear untimely appeals in other contexts (see here and here). And despite the defect is jurisdictional, the Supreme Court declined the opportunity to direct the Court of Appeal to provide a written rationale for allowing the untimely appeal and reversing a judgment.
Arguments supporting untimely appeals, then, may be “on the wall.” Watch this space.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.
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