Order was file-stamped, but did not attach the POS, so it did not trigger the 60-day deadline to appeal

Timothy Kowal, Esq.
May 17, 2023

The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account Council v. City of Huntington Park (D2d3 May 11, 2023 no. B316139) 2023 WL 3371723 (nonpub. opn.). The court ultimately agreed with the appellant that, although a file-endorsed copy was served, and although a certificate of mailing was also served, the two things were not the same document and so could not be combined to create a rule 8.104 triggering document. So the appeal was timely.

What happened was Construction Industry filed a petition for writ of mandamus asking the Superior Court to compel the city to abide by its competitive bidding ordinance. Instead of fight the lawsuit, the city rescinded the contract it had awarded to build an aquatic center, and put the project out for re-bidding. (Justice Brennan was right: “See how easy it is to be a city attorney?”)

Construction Industry amended its petition to acknowledge the city’s change of position. This time, Construction Industry alleged the city was not being transparent and was going to wind up giving the project to its favored bidder anyway. The trial court was unpersuaded and ruled that the new theories were either moot, unripe, or that the plaintiff lacked standing. So Construction Industry appealed.

Before affirming on the merits, the Court of Appeal had to decide whether it had jurisdiction to consider the appeal. Construction Industry waited longer than 60 days after the clerk served a file-stamped order. So under rule 8.104(a)(1)(A), the appeal appeared to be untimely.

But Construction Industry correctly noted that rule 8.104(a)(1)(A) applies only if the filed-endorsed copy of the judgment “show[s] the date [it] was served.” Here, the order and certificate of mailing were separate documents because the order was on a one-page form designated “LACIV 140” on the bottom, whereas the certificate of mailing does not have the same designation, and the two documents are not paginated consecutively.

The operative precedent on this point is Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 (Alan)), which the court analyzed extensively. (See also here.) Alan noted that rule 8.104 “requires a single document…that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed.” (Alan, supra, 40 Cal.4th at p. 905.) Alan contemplates that the document “can have multiple pages,” but that “the rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. ‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’ ” (Ibid.)

Also relevant is the case of M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, where the clerk prepared a corrected proof of service that reflected that the clerk mailed copies of a file-stamped order. (Id. at p. 610.) But the order “did not ‘show the date [it] was served,’ ” and so the court “conclude[d] the file-endorsed copy of the order cannot be read in conjunction with the separate document—the ‘corrected proof of service’—to satisfy the requirements of [former] rule 8.104(a)(1)(A).” (Id. at p. 612.)

Following this analysis, the court concluded that the service of the file-stamped order did not trigger the 60-day appellate deadline. The order “does not mention the certificate of mailing or otherwise appear to incorporate it. And the record does not establish that the certificate of mailing was attached to the order of dismissal, even assuming they were mailed together in the same envelope to counsel for the parties. Thus, following Alan and M'Guinness, and with due regard for the “ ‘the well-established policy, based on the remedial character of the right to appeal, of according that right in doubtful cases “when such can be accomplished without doing violence to applicable rules” ’ ” (Alan, supra, 40 Cal.4th at p. 901), we conclude that the time for CIFAC to file its notice of appeal was not triggered by the court clerk's mailing of a filed-endorsed copy of the order of dismissal.”

Takeaway: There are three important things to remember about rule 8.104 and when the 60-day appellate deadline applies:

  1. Always assume the 60-day deadline applies. Just because you didn’t receive a triggering document doesn’t mean it wasn’t mailed. Mailing is the triggering act, not receipt: The 60-day deadline runs from mailing—receipt is irrelevant.
  2. If you are the prevailing party, immediately serve a Notice of Entry. Serving a document titled “Notice of Entry” more reliably triggers the 60-day period.
  3. If your appeal is filed more than 60 days after the file-stamped order is mailed, consult an appellate specialist—many a “file-endorsed” order fails to trigger the 60-day deadline for lack of showing the date of service.

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 tkowal@tvalaw.com or (714) 641-1232.

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