New Year's resolution: filing appeals on time [MCLE]
January is a time for recalibration, renewed goals, and New Year's resolutions. Here's a resolution always worthy of consideration: timely appeals. After all, it is fundamental that the Court of Appeal has no jurisdiction to hear an untimely appeal. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal. 4th 51, 56 (1997). Filing a timely notice of appeal should be simple. And yet, as a very recent unpublished opinion demonstrates, sometimes things go wrong. Manapat v. Hoffman, 2017 WL 222563 (Jan. 19, 2017). Nevertheless, if a few cautionary steps are remembered, filing a timely notice of appeal should be a resolution that's fairly easy for litigators to keep.
The starting point is Rule 8.104 of the California Rules of Court. Unless a statute or another rule says otherwise, it provides appellants with all-important deadlines for filing a notice of appeal. As Rule 8.104 states, normally, there are two potential deadlines of 60 or 180 days. If either the clerk or a party serves notice of entry of judgment (or an appealable order) or just a file-endorsed copy of the judgment (or appealable order), the 60 day time to appeal is running from the date of such service. If neither of those things happens, then there is a 180 day outer limit for filing a notice of appeal that runs from entry of the judgment/appealable order.
Rule 8.108 provides for extended time to appeal when particular motions are filed or for filing a cross-appeal. Rule 8.108 is the Cape Horn of appellate rules, a body of water littered with the shipwrecks of untimely appeals. The dangers arise from the interplay of Rule 8.108 and the underlying motion or motions being filed (for example, new trial, JNOV). This rule is worthy of a separate, lengthy article so suffice to say, proceed with extreme caution when seeking to determine its applicability.
So what happened in Manapat? The plaintiffs sued 14 defendants over title to real property. Twelve of the defendants demurred, and the trial court sustained the demurrer without leave to amend. A judgment of dismissal in favor of those 12 defendants was entered April 22. Notice of entry of judgment was served on the plaintiffs May 8. Then, on Aug. 25, the court entered another judgment identical to the April 22 judgment but also including the final two defendants. Notice of entry of that subsequent judgment was served Sept. 4 and only 45 days later, plaintiffs filed their notice of appeal.
All good, right?
Nope. With respect to the 12 demurring defendants, the appeal was untimely. What went wrong? Certain actions by the trial court, including entry of an unsigned minute order stating that the April 22 judgment should be "set aside," created confusion as to which judgment was operative. More confusion followed when the court entered yet another judgment as to three of the 12 demurring defendants already included in the April 22 judgment. The court then vacated that judgment. Ultimately, the court entered the Aug. 25 judgment that included all 14 of the defendants. In light of such court-induced confusion, shouldn't plaintiffs' appeal proceed?
Unfortunately, no, at least not as to the 12 demurring defendants. The time for filing a notice of appeal is jurisdictional. If the notice of appeal is untimely, the appellate court must dismiss the appeal. Van Beurden Ins. Services, Inc., 15 Cal. 4th at 56. And a court lacks the power to vacate, on its own motion, a judgment that is not void. Kimball Avenue v. Franco, 162 Cal. App. 4th 1224, 1230 (2008). Thus, the trial court's subsequent actions notwithstanding, since the April 22 judgment of dismissal as to the 12 demurring defendants was not void, and notice of entry was served on May 8th, the last day to appeal from that judgment came 60 days later on July 7. As the Court of Appeal put it in Manapat, "in the face of a validly served notice of entry of judgment ... 'the prudent course of action' would have been to appeal from the April 22 judgment as well."
Does it really all come down to when in doubt, file a notice of appeal? Sometimes it might. But how about some additional New Year's resolutions for civil litigators designed to reduce uncertainty about when to appeal:
* When it comes to appealable orders, read the list set forth in Code of Civil Procedure Section 904.1;
* However, if a particular type of order is not listed in Section 904.1, do not assume the appeal is taken from the judgment. There are appealable orders not listed in 904.1. For example, orders denying class certification and orders directing the sealing/unsealing of records are appealable orders. So keep digging.
* Read Rule 8.104 to understand the "normal" deadline for filing a notice of appeal;
* In determining if time to appeal is running, remember that service of a file-endorsed copy of the judgment or order is sufficient to trigger the clock (reread Rule 8.104);
* Forget about the mailbox extension, it has no application to a notice of appeal;
* Never wait until the last day to file a notice of appeal; and
* Set sail solo, in the sea of Rule 8.108's "extended time," only if dead certain that errors and omissions premiums are fully paid, coverage limits are generous, and life jackets strapped on.
Manapat is a reminder that when it comes to timely appeals, things are not always as simple as it seems. So here's another good resolution for 2017: consult with an appellate lawyer well in advance of any potential deadline to appeal. Go on, try it. Appellate lawyers lead a somewhat solitary existence and are always happy to discuss appellate procedure. Unless of course, it's the last day to file a brief. But hey, that's another kind of resolution altogether. Have a happy and timely, New Year!
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