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: Timely and Untimely Appeals

Disqualification motion tolls posttrial and appellate deadlines

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.

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Zoom Trials Are Not (Yet) the New Normal

Jeff and Tim discuss some recent cases to add to your attorney toolkit:

1. For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off.

2. Quashing a subpoena based on free speech gives a right to attorney fees. But caution: the court regarded the fees as purely mercenary in this case, and denied them.

3. No, Zoom trials are not a substitute for real trials — not unless the Legislature says so before July 1, 2023.

4. Beware dismissing appeals, because they’re almost always “with prejudice.”

5. How to lose your appeal by flubbing the Rule 8.108 appeal extensions.

We also discuss the Onion’s amicus brief in the US Supreme Court, and the California Supreme Court’s order declining to review whether bees are fish (but which the media interpreted as affirming that bees are, indeed, fish).

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How does the extension of time to appeal under rule 8.108 work?

So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal.

The first lesson is: Your new trial motion has to be “valid.” Here, failing to file supporting papers arguably made the motion invalid. (Even though the text of the rule doesn’t really support this read, who is going to argue that you shouldn’t have to support your motion?)

The second lesson is: If a challenge to timeliness is raised, be sure to argue your right to an extension under California Rules of Court rule 8.108. The appellant here failed to raise it in her brief, so it was deemed forfeited. (But in this, the court was wrong: you cannot forfeit jurisdictional arguments.)

The third lesson is: If the trial court takes your motion off calendar, you should probably assume it is denied. (This too, seems wrong to me. The rule 8.108 extension begins running from service of the order “denying” the motion, not from when you should “assume” it’s denied.)

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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?

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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.

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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.

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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.

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"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.

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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.)

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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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