This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and transfer the case back.
In Sidney, the appellant’s opening brief got kicked for defects, and the appellant failed to refile on time. So the court dismissed the appeal. The court can vacate a dismissal and reinstate the appeal, but only so long as it retains jurisdiction. After 30 days, the Court of Appeal loses jurisdiction. Here, the docket indicates the motion was filed "[o]n November 15, 2022, at 12:52 a.m., a day after this court's jurisdiction ended."
But even though it no longer had jurisdiction, the court still did the appellant a favor. Division 2 asked the Supreme Court to grant review on its own motion and transfer the case back, "to allow this court to act on appellant's motion."
And the Supreme Court obliged.
Thanks to David Ettinger for this tip.
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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