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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Timely and Untimely Appeals

Strange Appellate Things: Untimely Appeals OK’d, No Right to Settled Statement, and… “SMACC” Suits?

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Read More
Are the Courts Split on Untimely Appeals?

You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok?

But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.

In one case, an appellate court held a belated appeal from a judgment may be resurrected by appealing from a subsequent cost award in an amended judgment.

And in another case, the court held an appeal filed after the 60-day deadline after a notice of entry is timely if the notice of entry does not attach the judgment.

The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. Arguments supporting untimely appeals may be “on the wall.” Watch this space.

Read More
Untimely Appeal from Judgment Should Have Been Taken From Denial of Petition for Mandamus, Published Opinion Holds

Commentator Michael Shipley calls this one a “bait and switch.” In Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 2022 WL 702912 ___ Cal.Rptr.3d ___, a police officer lost his petition for writ of mandamus. The trial court entered a signed “order” in August, served the same day. But the court did not enter judgment until nearly two months later. The officer appealed. The appeal was timely if it was from the judgment. But it was untimely if it was from the denial order.

The Court of Appeal held the signed denial order was the appealable order, even though it was not a formal judgment. Thus, the appeal was untimely and must be dismissed.

The court focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.

The office made a lot of good arguments why the appeal was properly taken from the judgment, including the fact the statute says a judgment “shall” be entered. But the court was unpersuaded.

The Upshot: When the trial court enters an order that basically ends the case, carefully consider whether it is immediately appealable. Sometimes it will be, like for orders on petitions for writs of administrative mandamus. Other times, it won’t be, like orders after demurrers and MSJs. This may be a good time to inquire with an appellate specialist.

Read More
Another Untimely Appeal Excused in Dependency Case Based on Ineffective Assistance of Counsel

In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (*[In re A.R.](2021) 11 Cal.5th 234.)

The reason this was surprising is because, until then, a uniformity of California cases had held that an untimely appeal *was* an “absolute bar” to appellate jurisdiction.

But *A.R.* had noted there was a statutory right to “competent counsel” and a habeas right in dependency proceedings, so the Court would let slide the four-day untimeliness.

The recent case of *In re B.P.* (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.), took *A.R.* quite a bit further. That case involved a four *month* untimeliness. Also: no habeas petition. The court still allowed the untimely appeal.

As I said before discussing *A.R.*, courts will continue citing the "jurisdictional" prohibition against considering untimely appeals. But, we may continue to wonder whether they are in earnest.

Read More
"Notice of Ruling"​ ≠ "Notice of Entry"​ When Calculating the Extension of Time to File Attorney Fee Motion or Appeal After Denial of New Trial Motion

Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion?
a. 30 days
b. 60 days after notice of entry of judgment
c. 180 days after entry of judgment
d. It depends on how order denying the new trial motion was served.

If you answered "it depends" then you are correct, as helpfully explained in Gallop v. Duval (D2d2 Sep. 2, 2021) 2021 WL 4077847 no. B308531 (nonpub. opn.).

Closely following rule 8.108, the court noted that the new trial denial order was not served. A notice of entry was not served. The denial was not by operation of law. By process of elimination, the time to appeal was extended to 180 days after entry of the November judgment. The February motion was timely, so the trial court's denial of attorney fee motion as untimely had to be reversed.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
Amended Judgment Does Not Revive Time to Appeal Prior Judgment or Fee Award; Appeal Dismissed

Here is a common question:

A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered.

To seek reversal of the fee and cost award, which order, or orders, must be appealed?

Answer: All three.

The California Attorneys Fees blog reports this unpublished decision out of the Fourth District, Division Three, Tiger Loans, Inc. v. Yan Hao (D4d3 Feb. 9, 2021) No. G058954, dismissing an appeal as untimely.

(If you really only want to appeal the fee and cost award, you should be fine with just appealing that order: the underlying judgment and later amended judgment ordinarily are not necessary. But you cannot get in trouble by being extra cautious.)

Read More
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 […]

Read More
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.

Read More

Tags

Podcast (85)
Videos (73)
Appealability and Appealable Orders (27)
Abuse of Discretion (23)
Legal Writing (21)
Notices of Appeal (18)
Statements of Decision (17)
Waiver and Forfeiture (16)
Unpublished Opinions (16)
Stays on Appeal (16)
Splits of Authority (15)
Mischief (15)
Attorney Fees (14)
Arbitration (14)
Dismissals (14)
Anti-SLAPP (13)
Dissents (12)
Briefing (12)
Family Law (11)
Record on Appeal (11)
New Trial Motions (11)
Mootness (10)
Timeliness (10)
Sanctions (9)
Appellate Sanctions (9)
Civility (9)
Judgment Enforcement (9)
Oral Argument (9)
California Supreme Court (9)
Preliminary Injunctions (9)
Evidentiary Objections (9)
Collateral Orders (9)
Federal Courts (9)
Motions for Reconsideration (8)
Exclusion of Evidence (8)
Timely and Untimely Appeals (8)
Jurisdiction (8)
Implied Findings (8)
Appealability (8)
Dismissed Appeals (8)
Experts (8)
Trial Strategy (8)
CCP 998 Offers (7)
Summary Judgments and Summary Adjudications (7)
Respondent Arguments (7)
Ninth Circuit (7)
Writ Petitions (7)
Trial Procedure (7)
Probate Appeals (7)
Disqualification (6)
Appellate Bonds (6)
Admission of Improper Evidence (6)
Standards of Review (6)
Appellate Practice (6)
Discovery (6)
Substantial Evidence (6)
Stipulated Judgments (6)
Settlements (6)
Posttrial Motions (5)
Default Judgments (5)
Ethical Duty of Candor (5)
Standing (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Notices of Entry (4)
Depublished Opinions (4)
Motions to Vacate and Set Aside Judgments (4)
Excessive Damages (4)
Trust and Probate (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Petitions for Review (3)
Jury Waivers (3)
Summary Judgments (3)
Expert Opinions (3)
Motions to Dismiss (3)
Summary Judgment (3)
Appealable Orders (3)
Mediation (3)
Stays (3)
Demurrers (3)
Motions to Vacate (3)
Amicus Briefs (3)
Trial Irregularities and Structural Errors (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Trial by Reference and Pro Tem Judges (2)
Law and Motion (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Remote Arguments (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Personal Jurisdiction (2)
ADA and Unruh Accessibility Actions (2)
Tentative Rulings (2)
Landlord Tenant (2)
Judicial Bias (2)
Prejudicial Error (2)
Appeals Dismissed (2)
Invited Error (2)
Waiver (2)
Untimeliness (2)
Legal Practice (2)
Finality and Final Orders (2)
Pretrial Procedure (2)
Federal Appeals (2)
Alter Ego (2)
Post Reversal Issues (2)
Pretrial Issues (2)
Class Actions (2)
Comments (2)
Medical Rights (2)
Premature Appeals (2)
Legal Tech (2)
Civil Theft (1)
Treble Damages (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
PAGA Attorney Fees (1)
Issue Selection on Appeal (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Premises Liability (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Attorney Fees - CCP 1021.5 (1)
Judicial Estoppel (1)
Harmless Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Consenting to Judgments (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Restraining Orders (1)
Summary Reversal (1)
Judicial Misconduct (1)
Stipulated Reversals (1)
Constitutional Litigation (1)
Constitutional Law (1)
Mistrials (1)
Administrative Law (1)
Podcasts (1)
Writs of Mandamus (CCP 1085) (1)
Nonsuit (1)
Closing Argument (1)
Stare Decisis (1)
Settled Statements (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down