In case you think me a Cassandra with my frequent warnings about losing your appeals to technicalities, I have three Court of Appeal opinions from just this week to buck you up. All three opinions promise that, no, the Court of Appeal is not looking for picayune errors in your notice of appeal for an excuse to dismiss your appeal.
Also below: A call to colleagues to consider discontinue using the Judicial Council form Notice of Appeal.
Failing to Identify the Appellant in the Notice of Appeal May Not Be Fatal:
Two separate recent opinions find notices of appeal that omit the basic detail of identifying the appellant. Yesterday we covered Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). And now another Second District Court of Appeal opinion in Bou v. Velasquez (D2d3 May 18, 2021) no. B294094 (non-pub.) finds the same problem. In both cases, a notice of appeal was filed, but failed to list the appellant. In Westlake, an individual sought to appeal from an order finding him an alter-ego of the corporate defendant, but the notice of appeal was filed only by the corporation. In Bou, husband and wife, in pro per, filed an appeal from an order of dismissal following demurrer, but only the husband's name was on the notice of appeal.
Both cases followed last year's California Supreme Court decision of K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 (we discussed K.J. previously here), where an attorney appealed a sanctions order against him, but his notice of appeal identified his client as the appellant, not himself. The Supreme Court concluded “that a reviewing court must construe a notice of appeal from a sanctions order to include an omitted attorney when it is reasonably clear that the attorney intended to join in the appeal, and respondent was not misled or prejudiced by the omission.” (Id. at p. 885.) Both Westlake and Bou concluded that, following K.J., the defects in the notices of appeal were not fatal because the identity of the intended appellants was reasonably clear, and the respondents were not prejudiced or misled in any way.
(Note: Not long before K.J. I successfully moved to dismiss an appeal situated not unlike K.J., relying on the requirement that the appellant be legally “aggrieved.” (Code Civ. Proc., § 902; El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 977.) The appellant there, however, argued that the client was aggrieved by the sanctions order against her attorney. The appellant did not argue that the notice of appeal was mistaken, and that the intended appellant was, in fact, the attorney. The lesson: If you make a mistake, the best course may be to confess the error, argue no prejudice occurred, and pray for forgiveness.)
There Is No Need to List Prior Intermediate Orders in the Notice of Appeal:
In another case that illustrates how the Judicial Council form Notice of Appeal can cause heartburn, Clark v. City of Ontario (D4d2 May 17, 2021) no. E073663 (non-pub.) finds an appellant whose case was disposed of in two parts. First, several of his claims were disposed of via demurrer. Then the rest by summary judgment.
The appellant used the Judicial Council form Notice of Appeal to appeal the summary judgment, checking the boxes to describe the order appealed from as a "judgment after an order granting a summary judgment motion" and a "final judgment." So far, so good.
But what if, the appellant fretted, the Court of Appeal thinks my box-checking inadequate? Some of my claims were disposed of via demurrer, after all. And look! There is another box – left unchecked! – for "judgment of dismissal after an order sustaining demurrer." That kind of sounds like me. Maybe I should, just to be safe, file an amended notice of appeal?
So he did. And respondent pounced. A-ha! the respondent argued. The amended notice of appeal was filed after the deadline to appeal. The appeal is untimely!
Held: Give me a break. The appellant timely filed his notice of appeal. It said it was from a final judgment. The end.
Yes, the court observed, the appellant then also filed an "amended" notice of appeal listing the order partially sustaining a demurrer, but that kind of order most certainly is not appealable. An order that is not appealable does not require a notice of appeal. The appellant, the court put it, "was not required to specify any intermediate orders that he intended to challenge, any more than he was required to specify the issues he intended to raise."
A Suggestion to Colleagues:
May I take this opportunity to suggest that my colleagues consider discontinue using the Judicial Council form Notice of Appeal? The rule of liberality requires the courts to construe your notice of appeal broadly. The Judicial Council form invites you to give the courts reason to construe it narrowly. (The rule of liberality does not apply if there is evidence of a different intent on the part of the appellant.) The additional information the form calls for is entirely unnecessary, as I have explained previously here and here. It is an optional form, not a mandatory form.
I do not know why anyone would opt to use it. There is no reason I can think of to give the court, or your adversary, the invitation to interpret your tickmarks, or absence of tickmarks, on boxes that are unnecessary in the first place. Just identify the appealable order or orders from which you are appealing – and, might I suggest, also identify the correct appellants? – and you are done.
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 email@example.com or (714) 641-1232.