Legal News and Appellate Tips

Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right?

Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v. Wu (D4d3 Mar. 16, 2023 No. G062072) (nonpub. opn.).

They never received a notice of entry, so they appealed just under the 180-day deadline. And it was a big appeal too, over a $3.3 million default judgment.

But the plaintiffs had served a notice of entry. They mailed it to the addresses the defendants had on file. And they did so just a few days after entry of judgment, about five months before the defendants filed their appeal.

But we never got the notice of entry! said the defendants.

Nope. Receipt doesn’t matter. The 60-day clock runs upon deposit into the mail. "[T]he risk of failure of the mail is on the addressee[.]" (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)

Doesn’t this rule invite abuse? Would it allow a prevailing party to prepare a false notice of entry and proof of service, without any recourse? The court suggests that such allegations may be given ear, but not here, because the defendants did “not claim any irregularity,” such as “fail[ing] to mail the notice,” or that the addressees were incorrect.

The Upshot:

The best practice is to assume the deadline to appeal is 60 days from entry of the judgment. You can never prove the negative proposition that a clerk or another party never deposited a notice into the mail. So the date of entry is the only date you can confirm with any certainty. Take that, add 60 days, and mark it on your calendar with a fat-tip Sharpie.

Thanks to Ben Shatz for blogging this case: http://bit.ly/407U376

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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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.

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 […]

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.