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.