Legal News and Appellate Tips

The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account Council v. City of Huntington Park (D2d3 May 11, 2023 no. B316139) 2023 WL 3371723 (nonpub. opn.). The court ultimately agreed with the appellant that, although a file-endorsed copy was served, and although a certificate of mailing was also served, the two things were not the same document and so could not be combined to create a rule 8.104 triggering document. So the appeal was timely.

Before affirming the dismissal of a challenge that the city was violating its competitive bidding ordinance, the Court of Appeal had to decide whether it had jurisdiction to consider the appeal. Construction Industry waited longer than 60 days after the clerk served a file-stamped order. So under rule 8.104(a)(1)(A), the appeal appeared to be untimely.

But Construction Industry correctly noted that rule 8.104(a)(1)(A) applies only if the filed-endorsed copy of the judgment “show[s] the date [it] was served.” Here, the order and certificate of mailing were separate documents because the order was on a one-page form designated “LACIV 140” on the bottom, whereas the certificate of mailing does not have the same designation, and the two documents are not paginated consecutively.

The court concluded that the service of the file-stamped order did not trigger the 60-day appellate deadline. The order “does not mention the certificate of mailing or otherwise appear to incorporate it. And the record does not establish that the certificate of mailing was attached to the order of dismissal, even assuming they were mailed together in the same envelope to counsel for the parties.”

Takeaway: There are three important things to remember about rule 8.104 and when the 60-day appellate deadline applies:

1. Always assume the 60-day deadline applies. Just because you didn’t receive a triggering document doesn’t mean it wasn’t mailed. Mailing is the triggering act, not receipt: The 60-day deadline runs from mailing—receipt is irrelevant.

2. If you are the prevailing party, immediately serve a Notice of Entry. Serving a document titled “Notice of Entry” more reliably triggers the 60-day period.

3. If your appeal is filed more than 60 days after the file-stamped order is mailed, consult an appellate specialist—many a “file-endorsed” order fails to trigger the 60-day deadline for lack of showing the date of service.

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:

📬 Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)

⌚ An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.

📝 A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.

📝 What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.

Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.

The first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690 (nonpub. opn.), the judgment of dismissal following demurrer was stamped and attached with a proof of service. But McKenzie waited more than 60 days to appeal. That was too late.

But wait! McKenzie urged that the judgment and certificate of service were defective and so could not trigger the 60-day deadline (meaning her deadline was 180 days). McKenzie raised three alleged defects with the triggering document:

1. The certificate of mailing was signed with an “illegible scribble.” Court’s response: We can read it fine. And so what if we couldn’t?

2. The file-stamp on the judgment was not signed. Response: Sorry, there is no requirement that the stamp be signed.

3. The certificate of mailing only says the proposed judgment was served, not the judgment. Response: No, it says “judgment.”

While the appellant’s effort did not succeed, she was right to look for challenges with the rule 8.104(a)(1)(A)-(B) triggering document. A lot of requirements there need to be met: (1) signed, (2) stamped, (3) proof of service, and (4) contained all in a single document. Miss any one of these and you have a good argument that the 60-day deadline has not been triggered. (This is why a Notice of Entry is a far cleaner triggering document.)

But the document here checked all the boxes. Untimely appeal dismissed.

Everyone knows two things about the deadline to appeal:
1. The deadline is 60 days.
2. You can get an extension if certain posttrial motions are filed.

But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides.

In this 5-minute clip, Jeff Lewis and I discuss how to calculate the deadline to appeal. We also discuss that while the deadline to file an appeal is jurisdictional, and thus not subject to any equitable or discretionary exceptions, there are in fact at least five official exceptions to the jurisdictional deadline to appeal. (As well as unofficial exception that the court may simply ignore the fact that an appeal is untimely.)

The five official exceptions are:

1. Public emergency. (Rules 8.66, 8.104(b).)
2. Clerk wrongly rejects a timely notice of appeal. (Rules 8.25(b)(1), 8.100(b)(3).)
3. Prison-guard rule. (Rule 8.25(b)(5).)
4. Ineffective assistance of counsel in filing an untimely appeal (in criminal and juvenile dependency appeals). (In re A.R. (2021) 11 Cal.5th 234, 243, 276.)
5. Failure in the e-filing system. (Rule 8.77(d). Garg v. Garg (2022) 82 Cal.App
.5th 1036, 1051.)

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

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this?

Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random violence to the rules of appellate procedure?

Jeff has a different view. Here is the Jeff Lewis hypothesis for the utility of complicated appellate rules: relaxing the machinery of arcana is how appellate judges show sympathy to deserving litigants without changing the actual outcome.

But regardless, the no-harm-no-foul excuse only applies to one of the cases. The other case we discuss ended in reversal. How did the court explain how it could possibly reverse a judgment based on an untimely appeal? Simple: It ignored the issue.

Are these cases just exceptions to the normal operation of the rule of law? Of course. But remember: because the sovereign decides the Exception and when, the sovereign is not, in the end, subject to the Rule of Law except, in the final analysis, by the sovereign’s consent. The Rule of Law, then, becomes merely a slogan.

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.

After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher Jones in the Quentin Tarantino Film Once Upon a Time … in Hollywood.

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.

The plaintiff also had a second problem: the notice of appeal did not identify the order being challenged on appeal, or the name of the appellant, and so the clerk rejected the notice of appeal for that reason. So the morning after the deadline, the plaintiff filed a motion to amend the notice of appeal to correct those errors. The plaintiff also explained the e-filing problems.

But the Court of Appeal still dismissed the appeal.

This case applied the rule providing for relief for e-filing mishaps much more narrowly than another recent case in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500).

And it also declined to invoke the doctrine of liberality, which the same Second District invoked—rather liberally—in its recent decision in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353).

So when it comes to invoking the rules that might relax the deadline to appeal, your mileage may vary. Do not count on them.

So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.).

On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the defendant’s attorney totaling $6,577. That is more than $5,000, so it is appealable. (Code Civ. Proc., § 904.1(a)(12).)

The minute order was not file-endorsed. But it attached a certificate of mailing, which was filed-endorsed.

The default deadline to take an appeal is 180 days. (Cal. Rules of Ct., rule 8.104(a)(1)(C).) But a file-endorsed order showing the date it was served triggers the 60-day deadline to appeal. (Cal. Rules of Ct., rule 8.104(a)(1)(A).)

So was a non-stamped order attaching a stamped certificate of mailing a triggering document under rule 8.104?

Close call, but no, held Castillo. Under Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, the court may treat the order and certificate of mailing as the same document, for purposes of complying with the part of the rule that requires the order the show the date of mailing. But are they the same document such that a file-stamp on the certificate constitutes a file-stamp on the order? “[W]e are not aware of any courts to have taken that approach and we decline do so here.”

“Here, the trial court's minute order is not “truly” filed-endorsed.”

Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later.

But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023 WL 369440 (nonpub. opn.). By the time the costs were awarded, the deadline to appeal had run. So the appellant’s appeal was dismissed.

Readers might recall that last year I covered the Second District case of Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), involving a near-identical situation. The respondent moved to dismiss the appeal, presumably based on the same principles cited in Worsnop—an amendment that merely adds costs does not resurrect the time to appeal.

But the Second District not only denied the motion to dismiss, but shot back at the respondent: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That was the entirety of the analysis on the issue.

The Pelter decision was wrong. The Worsnop opinion is right.

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline.

After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz (D4d3 Nov. 14, 2022) no. G060515, 2022 WL 16918764 (nonpub. opn.) the probate court held a further hearing.

Then the court issued a couple of rulings that are the pieces of the puzzle of the 60-day deadline:

First, in June, the court issued a tentative decision.

Then in July, the court issued a modified statement of decision and order. The clerk served a filed-stamped copy of the modification.

Finally, in August, the respondent served a notice of entry of the tentative—but not the modification.

The appellant filed her fee motion in October—within 60 days after service of the notice of entry of the tentative, but more than 60 days after service of the file-stamped copy of the tentative.

So was the fee motion timely?

Held: The fee motion was timely. Whether the 60-day period started running from service the notice of entry of the tentative or the file-stamped copy of the modification is a trick question: neither one was complete in itself, and so neither was effective to trigger the 60-day deadline.

Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions.

Well, here is yet another exception: We already knew that, when a motion for new trial is filed, that extends the time to appeal to 30 days after the motion is denied. And we already knew that the trial court’s deadline to deny the motion is 75 days after service of the notice of entry of judgment. That’s all laid out clearly in California Rules of Court 8.108 and Code of Civil Procedure section 660, and these rules are treated as jurisdictional. But if a party files a motion to disqualify the trial judge before the judge denies the motion for new trial, that tolls the 75-day period.

That is what the Fourth District Court of Appeal held in Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). After the trial court nonsuited the plaintiff’s case, the plaintiff moved for a new trial. But then three weeks later—before the court had had a chance to rule on the new-trial motion—the plaintiff moved to disqualify the trial judge.

Under the normal rule, the motion for new trial would have been deemed denied automatically after the 75th day. But at that time, the disqualification motion was still pending. So even though the plaintiff filed her appeal within 30 days after the exonerated trial judge denied the new-trial motion, the defendant argued this was too late.

Held: The appeal was not untimely. The DQ motion tolled the judge’s time to act.