The first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690 (nonpub. opn.), the judgment of dismissal following demurrer was stamped and attached with a proof of service. But McKenzie waited more than 60 days to appeal. That was too late.
But wait! McKenzie urged that the judgment and certificate of service were defective and so could not trigger the 60-day deadline (meaning her deadline was 180 days). McKenzie raised three alleged defects with the triggering document:
A valiant effort. And in point of fact, there are often problems with the rule 8.104(a)(1)(A)-(B) signed file-endorsed copy showing the date of service. A lot of requirements need to be met: (1) signed, (2) stamped, (3) proof of service, and (4) contained all in a single document. Miss any one of these and you have a good argument that the 60-day deadline has not been triggered. (This is why a Notice of Entry is a far cleaner triggering document.)
But the document here checked all the boxes. Untimely appeal dismissed.
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 summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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