To Start the 60-Day Clock for Your Opponent to Appeal, You Must Include a Proof of Service with Your Notice of Entry

Timothy Kowal, Esq.
July 8, 2021

Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?

That is what happened in Smith v. Monk (D2d4 Jul. 6, 2021) no. B300975 (nonpub. opn.). Smith and Monk are an estranged mother and daughter. Mother rented the lower unit of her duplex to daughter, while mother inhabited the upper unit. Daughter stopped paying rent, so mother filed an unlawful detainer. But the parties settled that dispute.

A year later, mother sued daughter again, this time claiming daughter was physically abusing her. After a two-day evidentiary hearing, the trial court did not find physical abuse, but did find financial abuse. And on this basis, in February 2019 the court ordered daughter to move out of the property immediately.

(Daughter did not timely appeal this order. But this is not the first time I have seen an elder abuse restraining order serve as a substitute for an unlawful detainer.)

Daughter filed a motion to vacate the restraining order, which the court denied in a June 2019 order. In July 2019, the court granted mother's motion to declare daughter a vexatious litigant.

Daughter filed a second motion to vacate the restraining order, which the court denied in a January 2020 order. Daughter appealed.

Actual Notice of an Appealable Judgment or Order Does Not Trigger the 60-Day Deadline to Appeal Without a Proof of Service:

Daughter appealed from all four orders, the earliest being the February 2019 elder abuse restraining order. Ultimately, the Second District Court of Appeal held her appeal of that order was not timely within the outer 180-day limit, as it was not filed until 10 months later in December.

But the court did something noteworthy in rejecting mother's argument that the 60-day deadline applied to that order.

Under California Rules of Court rule 8.108(a)(1)(A), the deadline to appeal is 60 days where the "clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served." Mother argued that this provision applied because daughter “was present in court and was handed a copy of the [EARO] by the Clerk of the Court.”

This won't work, the court held. "Even where the appellant has actual notice" of the appealable order, “the prevailing party still must comply with the service provisions in the court rules in order to shorten the appeals period from 180 days to 60 days. [Citations.]” (In re Marriage of Lin (2014) 225 Cal.App.4th 471, 476.)

To be effective, a Notice of Entry or file-endorsed copy of the appealable judgment or order must be accompanied by a proof of service. Even actual notice, or a waiver of notice, or a cover letter will not suffice. (Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 51, 58; Marriage of Lin, supra, 225 Cal.App.4th at p. 476.)

Mother also failed to trigger the 60-day deadline as to the June 2019 order. Instead of serving the file-endorsed copy of that order directly, she attached it as an exhibit to an opposition to one of the daughter's other filings.

That does not work. Here is the analysis to clip-and-save:

"Construing the rule strictly, as we must (In re Marriage of Lin, supra, 225 Cal.App.4th at p. 474), the plain language of rule 8.104(a)(1)(B) appears to require parties to serve a copy of the order itself (or a document entitled “Notice of Entry” of the order), accompanied by proof of service of that specific document. (See Cal. Rules of Court, rule 8.104(a)(1)(B).) Further, acceptance of Smith's proposed application of the rule runs the risk of requiring litigants to “guess, at their peril, whether [certain] documents ... trigger the duty to file a notice of appeal.” (Alan v. America Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905.) “ ‘Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.’ [Citation.]” (Ibid.)

Two Curious Items:

Before leaving this case, two quick observations:

First, recall I mentioned that the parties had settled their UD action. The daughter raised this issue in her motion to vacate, arguing that, as the issues had already been decided in that on-the-record settlement of the UD action pursuant to Code of Civil Procedure section 664.6, they could not be relitigated against her in the continuation of the dispute in the elder abuse restraining order. This would violate res judicata, and thus affects the court's fundamental jurisdiction.

That seems like a pretty good argument to me. But the court rejected it: "It is well-settled, however, that “res judicata is a defensive plea and does not affect the court's jurisdiction. [Citations.]” (Howard Greer Custom Originals v. Superior Court of Los Angeles County (1948) 87 Cal.App.2d 816, 817; David v. Hermann (2005) 129 Cal.App.4th 672, 683 [“Res judicata is not a jurisdictional defense .... [Citation.]”].)

While that may be true, the rule has an exception that seems to apply here: "However, an exception exists where both trials are related to the same case.... In such a case the trial court lacks jurisdiction to redetermine that part of the judgment which has become final and a writ of prohibition will properly lie. [Citations.] (Burgermeister Brewing Corp. v. Superior Court (1961) 195 Cal.App.2d 368, 370-71.)

The second additional curious item in this case is something the daughter noted about the vexatious-litigant declaration against, which already seemed a bit odd since the daughter was the defendant, not the plaintiff: "She also asserts that “off the record, as the parties packed up to leave [the evidentiary hearing on Smith's EARO in February 2019], Judge Gordon advised [Smith] to file a vexatious litigant action against [Monk].”" The daughter argued this showed the judge was biased against her, which the Court of Appeal rejected. And I agree this alone is not sufficient to establish bias. And the court noted the daughter failed to support the accusation with any citation to the record.

Still, one would expect at least a passing word that such a thing ought to be frowned upon.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.