Appeal deadline rules are a trap -- it's time to fix them

The California Court of Appeal is forgiving in regard to some appellate deadlines and liberally grants extensions to file certain documents such as the designation of the record on appeal and appellate briefs. However, the one thing which the court will not and cannot be generous about is the timely filing of a notice of appeal. The filing deadlines have been deemed to be jurisdictional, and a late-filed appeal must be dismissed. Cal. Rules of Court, Rule 8.104(b); Meinhardt v. City of Sunnyvale, 16 Cal.5^th 643, 649 (2024).  

The 60-day rule

While most attorneys know the basic rule that a notice of appeal in most unlimited civil actions must be filed within 60 days after the service of notice of entry of judgment, the actual rules regarding the filing deadlines are more complex. The 60-day rule provides for a 60-day filing deadline where a party or the superior court clerk serves a notice of entry of judgment or "a filed-endorsed copy of the judgment." Cal. Rules of Court, Rule 8.104(a)(1). A "judgment" for purposes of Rule 8.104(a) includes "an appealable order if the appeal is from an appealable order."  (Rule 8.104(e).)

Although it sounds straightforward, there are various factors to consider in regard to the 60-day rule, among which are the following: 

First, the rule provides that the notice of entry of judgment triggering the 60-day deadline be "entitled 'Notice of Entry' of judgment."  (Rule 8.104, subds. (a)(1)(A) and (a)(1)(B).)  In Sunset Millenium Associates, LLC v. Le Songe, LLC, 138 Cal. App.4^th 256, 259 (2006), the court held that the "notice of entry language on page 13 [of a 14-page minute order] does not comply with the literal requirement that the document providing notice of entry be so entitled."  In the case of an appealable order other than a judgment, "Notice of Entry" of the order [rather than "judgment"] in the title would likely suffice to trigger the 60-day deadline. Bi-Coastal Payroll Services, Inc. v. California Ins. Guarantee Assn., 174 Cal. App.4^th 579, 587 (2009) [the 60-day period began to run "when plaintiffs served their notice of entry of order"].

Second, Code of Civil Procedure section 1013, which extends the deadline to do certain acts depending on how a document is served, does not apply to the deadline for filing a notice of appeal.

Third, the outside time limit to file a notice of appeal is 180 days after entry of judgment regardless of whether notice of entry of judgment or a filed-endorsed copy of the judgment was served. (Rule 8.104(a)(1)(C).)  It is the earliest of these possible time limits that constitutes the deadline for filing a notice of appeal.

Extensions of time to appeal 

The rules for extension of the time to appeal where certain posttrial motions are filed, as set forth in California Rules of Court, Rule 8.108, are even more complicated. Whether an extension of the 60-day rule applies and what triggers such an extension based on the denial of a post-trial motion can include (depending on the type of post-trial motion at issue) whether a "valid" post-trial motion was filed, when notice of entry of denial of the motion or the denial order itself was served, and whether the motion was timely denied by the court or denied by operation of law.       

Simplify the deadline

There is no justification for this complex set of rules where a much simpler rule would work. Why not simply apply the outside deadline of 180 days after entry of judgment to all appeals? That way there will be no disputes regarding whether a notice of entry of judgment was actually served, or whether it met the standards for triggering the deadline, or whether an extension based on the filing of a post-trial motion applies. There is no reason why the deadline for filing a notice of appeal should be based on, for example, how a notice of entry of judgment is titled or when a notice of order denying a new trial motion was served rather than on the actual date judgment was entered.

These rules add confusion and create complexity to what should be a very simple and straightforward calculation of when the deadline to appeal a judgment is. In discussing the rules regarding the deadline to file a notice of appeal, the California Supreme Court recognized that parties should not be "required to speculate about jurisdictional time limits."  Alan v. American Honda Motor Co., Inc., 40 Cal.4^th 894, 905 (2007) (internal quotations omitted). A corollary to this proposition is that the determination of the jurisdictional time limit for filing a notice of appeal should be no more complicated than necessary.

The rules regarding the appeal deadline create a trap for the unwary. Replacing the current framework with an easily understood, one-size-fits-all deadline will reduce or virtually eliminate attorney error resulting in late-filed appeals. A less complicated, easily understood and easily applied rule should be adopted requiring a notice of appeal to be filed within 180 days after entry of judgment or appealable order.   

Concerns that replacing the current framework with a single 180-deadline will result in delay are unwarranted, as appellants usually want to proceed expeditiously rather than delay unnecessarily. However, if a 180-day deadline is considered to be too long, then a shorter deadline can be enacted. However, a single, easily applied deadline based on the date judgment is entered should replace the current labyrinth of rules that determines the deadline for filing a notice of appeal.