Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Notices of Entry

List the Wrong Order in Your Notice of Appeal? No Problem, Appellate Court Says

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

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.). Mother settled her unlawful detainer action against daughter, but later decided she still wanted her out. She accomplished this through an elder abuse restraining order.

Daughter's appeal, though unsuccessful, survived mother's challenges to timeliness. Mother failed to trigger the 60-day deadline to appeal because even though the order was personally served on daughter in court, and attached as an exhibit to a later filing, neither of these satisfies California Rules of Court, rule 8.104. The Notice of Entry or file-stamped copy of the order must be separately served and accompanied by a proof of service.

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Clerk's Notice Did Not Trigger Shorter Deadline to File Posttrial Motion, Second District Holds

Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the […]

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Cal Appellate News for Lawyers (Sept. 10, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: extended CA jurisdiction over out-of-state retailers, ADA liability over online-only businesses, courtroom pandemic changes, and pitfalls on new-trial motions.

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