Legal News and Appellate Tips

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m.

Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late.

So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 confirms, the exceptions are few and, as here, difficult to establish.

But there definitely are exceptions to the “jurisdictional” rule that a timely appeal is an absolute prerequisite. The exception at issue in Garg relates to problems with electronic filing. Here is the holding:

If you attempt to timely e-file a notice of appeal, but something goes wrong, all is not lost. Here is what you do:

(1) File the notice of appeal “as soon thereafter as practicable” (in the Superior Court), and at the same time;

(2) File a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt. (Rules of Ct., rule 8.77(d).)

But you must do these things immediately. The appellant in Garg waited 29 days, and that was too long. The Court of Appeal held that the appellant showed good cause for the technical foul up (the legal assistant had transmitted the notice of appeal to the e-filing vendor, but for reasons unknown, the vendor did not get it filed). But the court concluded that the appellant did not detect the error and seek relief “as soon thereafter as practicable.”

A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own.

The plaintiff noted this, and moved to dismiss the appeal as to wife. Filing a notice of appeal, the plaintiff argued, is the price of admission to the Court of Appeal.

The Court of Appeal disagreed, citing the doctrine of liberality in interpreting a notice of appeal and the Supreme Court’s opinion in K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875.

The doctrine of liberality is an exception to the ordinary rule that “appellate jurisdiction cannot be a matter of appellate discretion.” (Quest Internat., Inc. v. Icode Corp. (2005) 122 Cal.App.4th 745, review granted Jan. 19, 2005.) Even if you didn’t file a timely notice of appeal, as long as someone else did, you might be able to slip past the doorman.

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:

1. He was appealing two orders, but only listed the date for one of them.

2. He checked the wrong box for the legal authority supporting the appeal.

3. He failed to attach the order to his Civil Case Information Statement.

Courts liberally construe the notice of appeal so that appellants don’t lose their appeals for these kinds of technical reason. But there are limits, and the appellant exceeded the limit here.

Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice of appeal.

Rubbing the attorney’s nose in it, the Third District Court of Appeal held the sanctions award was improper on legal grounds, and must be reversed. But the sanctions against the attorney remained.

But Lafferty is probably wrongly decided. The California Supreme Court recently directed courts to be more lenient than this, and to excuse the omission of the attorney in a notice of appeal of a sanctions order. In the January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875, the Court held that the omission of an attorney from the notice of appeal of a sanctions order was not fatal.

The Upshot: Do not forget to name all appellants in the notice of appeal. But also be prepared to discuss the doctrine of liberality in construing the notice of appeal, and cite K.J. if any defects in the notice of appeal arise.

Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline.

But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time, the Second District held in Bennett v. Rivers (D2d3 Oct. 6, 2021) 2021 WL 4583844 (no. B301211) (nonpub. opn.), the rule of liberality is very forgiving.

The respondent missed a trick here by not serving a notice of entry of the appealable order. That would have set up the 60-day deadline to appeal. Here, the appellant waited to appeal from a subsequent (and non-appealable) order. He was forgiven for appealing from the wrong order, but he would not have been forgiven for blowing the 60-day deadline — if only the respondent had set it up.

That is why it is important to spot the appealable orders early on. If you are unsure, consider consulting an appellate attorney.

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I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your notice of appeal. (This is something attorneys do not like having to explain to their clients.)

Both of these points are confirmed in *Fang v. Shao* (D4d2 Oct. 8, 2021) 2021 WL 4704892 (no. E073065) (nonpub. opn.). The appellant appealed from a judgment, but checked the box saying she was appealing from an order after a judgment. The respondent pounced on the technical defect. The court found the notice of appeal was sufficient under the liberality doctrine.

But is there any reason to continue using the Judicial Council form notice of appeal? While you have the doctrine of liberality going for you, the form only gives the court reasons to construe your notice more narrowly. It is an optional form, but I am not aware of any upside of the option. To any attorneys interested, I am happy to email you my basic notice of appeal template on request: tkowal@tvalaw.com.

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If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure.

Harter v. Rancho Rios Homowners Assn. (D4d1 Jun. 17, 2021) no. D077119 (unpub.) rejected the respondent's arguments the appeal was untimely because a "notice of ruling" does not trigger the 60-day deadline to appeal under CRC 8.104, and serving a tentative ruling that became the final ruling does not trigger CRC 8.104, either.

Harter also confirmed that, although litigants are required to meet and confer before filing a demurrer, failing to do so is not a grounds for challenging the demurrer.

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never.

In appeals from orders denying petitions to compel arbitration where preference has been ordered, the notice of appeal must state it is governed by Code of Civil Procedure section 1294, and must attach the preference order and the order being appealed.

The appellant failed to do that in Avery v. All Saintsidence OPCO, LLC (D1d3 May 24, 2021) A162589. As a result, its appeal was dismissed.

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.

It is a horrifying thing to find that your appeal has been dismissed. And it can happen very easily. An appeal can be dismissed because the notice of appeal was filed late – even a day late. Or because the notice of appeal had the wrong box checked on it specifying the wrong type of order (even though specifying the type of order is not even required), or because the notice of appeal specified the wrong authority (which is not required, either).

So what about a notice of appeal that omits the name of the appellant? That is what happened in Westlake Village Marketplace, LLC v. West American Roofing, Inc. (D2d5 May 17, 2021) no. B306358 (non-pub.). Miraculously, that appeal, from the alter-ego judgment, survived. (But the judgment was affirmed.)

Also covered: A tactical choice for plaintiffs: whether "it may be prudent for a plaintiff to sue only the corporation," leaving the alter egos for postjudgment litigation.

The judgment-enforcement case of R Consulting & Sales, Inc. v. Kim (D4d1 May 13, 2021) (non-pub.) provides several useful lessons. For attorneys representing judgment-creditors, the case provides an interesting application of a wage garnishment against a debtor's sham companies. For appellants, it provides a caution in careful drafting of the notice of appeal, and a warning that post-judgment stipulations may be deemed as an assent to the judgment – thus waiving the right to appeal.

It also suggests how new legal theories – which sometimes may be raised for the first time on appeal – will be deemed forfeited if they involve a factual question that was not raised in the trial court.

Finally, it reminds attorneys for prevailing parties to be judicious in their use of redacted billings, and to avoid block-billing.