Notice of Appeal in State Court
Notice of Appeal in State Court
By
DANIEL U. SMITH
SMITH & MCGINTY
220 16th Avenue, Suite 5
San Francisco, CA 94118
415. 751. 4182
dusmith@pacbell. net
www. appealsmith. com
Certified Appellate Specialist
State Bar Board of Legal Specialization
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The
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Amended judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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NAME THE APPEALABLE ORDERS AND JUDGMENTS FROM WHICH
THE APPEAL IS TAKEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
B.
C.
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III.
NAME ALL APPELLANTS. . . . . . . . . . . . . . . . . 11
IV.
STEPS FOR FILING THE NOTICE OF APPEAL AND DESIGNATION
OF RECORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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B.
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ii
INTRODUCTION
This article reviews the requirements for a timely and sufficient notice of appeal
in the California Superior Court.
The notice of appeal is a jurisdictional document whose defects will cause a
failure to transfer jurisdiction from the superior court to the appellate court. CCP
916; Adoption of Alexander S. (1988) 44 Cal. 3d. 857, 864; Hollister Convalescent
Hosp. Comm. Inc. v. Rico (1975) 15 Cal. 3d. 660, 666.
A valid notice of appeal must meet three requirements:
1.
The notice of appeal must be timely (under one of three time periods).
2.
appealed from.
3.
A suggested form of notice of appeal is set forth at the end of this article.
I.
THE NOTICE OF APPEAL MUST BE TIMELY.
Three possible deadlines govern the filing of a notice of appeal: (1) 60 days from
notice of entry of judgment; (2) 30 days from denial of post-trial motions; or (3) 180
days from entry of judgment if the first two deadlines do not apply. The application of
these three time periods is discussed in sections B, C, and D.
A.
appellate court, an untimely notice requires dismissal of the appeal, either on the
respondent' s motion or the court' s own motion. Hollister Convalescent Hosp. Comm.
Inc. v. Rico, supra, 15 Cal. 3d, at 666-667. Courts have no authority to excuse a tardy
notice of appeal or to extend the time for appeal. Rule 8. 104(b). Appellate jurisdiction
cannot be conferred by consent, stipulation, estoppel, or waiver. Hollister
Convalescent Hosp. Comm. Inc. v. Rico (1975) 15 Cal. 3d 660, 666-667, 674.
after service by the clerk or any party of a document entitled "Notice of Entry of
Judgment" or of a file-stamped copy of the judgment, showing the date of mailing.
Rule 8. 104(a)(1), (f).
This requirement was not met (and the appeal period was not triggered) by the
clerk' s mailing of a statement of decision and a minute order where no "Notice of
Entry" was mailed and the appealable minute order was not file-stamped. Alan v.
American Honda Motor Co. , Inc. (2007) 40 Cal. 4th 894 (Reversing the Court of
Appeal' s dismissal of the appeal as untimely).
Entry constitutes either: (1) the date of entry in the judgment book or the date of
filing (if the county does not maintain a judgment book); or (2) the date of entry of an
appealable order in the minutes or the date of filing if the minute order expressly
directs that a written order be prepared, signed and filed; or (3) the filing of an
appealable order that is not entered in the minutes; or (4) the date of entry of a decree
of distribution in a probate proceeding at length in the judgment book or other
permanent court record. Rule 8. 104(d).
If both the clerk and a party give Notice of Entry of Judgment, the earlier notice
commences the 60-day period, and the second notice is ineffective. Filipescu v.
California Housing Finance Agency (1995) 41 Cal. App. 4th 738, 742. The proof of
service of notice of entry need not be filed. Service can be established through the
affidavit or declaration of the party that gave notice of entry, CCP 2009, or by
motion
to augment the record on appeal to include a declaration of service. National
Advertising Co. v. City of Rohnert Park (1984) 160 Cal. App. 3d 614, 618-619. The
copy of the judgment or order need not specify the date of entry so long as it shows the
date of filing. Estate of Crabtree (1992) 4 Cal. App. 4th 1119, 1123.
The 60-day period begins on the date of service of the Notice of Entry of
Judgment, not its receipt or filing with the court clerk. Mailed service is complete at
the time of deposit in the mail. CCP Section 1013(a). The sender does not have the
burden of showing that the notice was actually received. Therefore the 60-day period
to file the notice of appeal commences even though the appellant never received the
mailed notice of entry. Sharp v. Union Pac. R. R. Co. (1992) 8 Cal. App. 4th 357, 360.
The time for appeal is not extended 5-days for mailing under CCP Section 1013.
Rule 45(c); Casado v. Sedgwick, Detert, Moran & Arnold (1994) 22 Cal. App. 4th 1284,
1286.
When the deadline to appeal falls on a Saturday or Sunday or a holiday, it is
extended to the next day that is not a weekend day or a holiday. CCP Section 12, 12a.
C.
If a timely post-trial motion is denied, the time to appeal the judgment for all
parties (not just the party who filed the new trial motion) is extended 30 days from
either the denial by operation of law (no ruling within 60 days) or from the date of
service of the denial order.
First, the post-trial motion may be denied by an order in the minutes. If so, the
30-day extension runs from the mailing by the clerk or service by a party of the minute
order denying the motion. Rule 8. 108(b)(1)(A).
Second, denial can also occur by operation of law when the trial court fails to rule
timely within the earliest of 60 days after service of notice of entry of judgment by a
party or a clerk or (if no such service occurred) 60 days after filing of the first notice of
intention to move for a new trial. CCP 660. Where the trial court fails to rule on the
motion within this 60-day period, the motion is denied by operation of law. CCP
660.
In such a case, the 30-day appeal period runs from the date of that "deemed denial. "
Rule 8. 108(b)(1)(B). Freiberg v. City of Mission Viejo (1995) 33 Cal. App. 4th 1484,
1486-1487.
Withdrawal of a motion for a new trial is the equivalent of a denial of the motion
for the purpose of commencing the 30-day extension period in Rule 3(a). O' Donnell v.
Municipal Ct. (Watson) (1989) 207 Cal. App. 3d 714, 717-718.
A second new trial motion may not be considered after the denial of the first new
trial motion. Thus, a second motion does not extend the appeal period. Wenzoski,
supra, 43 Cal. 3d at 541-542.
If the new trial motion was not valid because it was not timely, then the additional
30-day is not available. In such a case, the appeal period expires either 60 days after
notice of entry of judgment or, if no notice of entry was given, 180 days after
judgment. Ramirez v. Moran (1988) 201 Cal. App. 3d 431, 435-437; Marriage of
Patscheck (1986) 180 Cal. App. 3d 800, 802.
A new trial motion may be filed before "entry" of the judgment (CCP 659;
Wenzoski, supra, 43 Cal. 3d at 541), but the motion is premature and void if it is filed
before there has been a "decision, " such as by a verdict or by the rendition of judgment
or a dispositive order in a court trial. A void motion does not extend the time for
appeal. Ehrler v. Ehrler (1981) 126 Cal. App. 3d 147, 151-152.
Filing a notice of appeal does not deprive the superior court of jurisdiction to
determine a new trial motion, but may bar rulings on a motion for judgment NOV, or
to vacate the judgment. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192
Cal. App. 3d 1204, 1212-1213 (court retains jurisdiction); Weisenburg v. Molina, supra,
58 Cal. App. 3d at 486 (court does not retain jurisdiction).
2.
After motion to vacate judgment, the notice of appeal must be filed by the earliest
of:
(1) 30 days after the clerk' s mailing or a party' s service of an order denying the
motion. Hollister Convalescent Hosp. Comm. , supra, 15 Cal. 3d at 664; Rolen v. Rhine
(1981) 117 Cal. App. 3d 23, 26.
(2) 90 days after filing the first notice of intention to move to vacate the judgment.
(3) 180 days after entry of judgment. Rule 8. 108(c).
This extension is not available if the motion to vacate was not valid because it was
not based on a statutory ground under CCP 473 or 663, or on extrinsic fraud or
mistake. Lamb v. Holy Cross Hosp. (1978) 83 Cal. App. 3d 1007, 1010.
3.
The time to appeal from the judgment is extended by the filing of a timely motion
for judgment NOV to either 30 days after the clerk' s mailing or a party' s service of the
order of denial or notice thereof, or 180 days after entry of judgment. Rule 8. 108(c).
The time to appeal the denial of a motion for JNOV is 60 days after the clerk' s
mailing or a party' s service of the order or notice of the order. Rule 8. 104(a), (f).
If judgment NOV is reversed on appeal, the original judgment is reinstated and
the time to appeal from that judgment begins to run upon issuance of the appellate
court' s remittitur. Lippert v. AVCO Community Developers, Inc. (1976) 60
Cal. App. 3d 775, 779.
D.
of judgment where no timely post-trial motion is filed and neither the clerk nor any
party gives proper notice of the entry of judgment or appealable order. Rule 8. 104(c).
Marriage of MacFarlane & Lang (1992) 8 Cal. App. 4th 247, 253; Hughey v. City of
Hayward (1994) 24 Cal. App. 4th, 206, 210 (180-day period applied because clerk' s
mailing of notice of entry was defective where the document was neither entitled
"Notice of Entry" nor file stamped).
The date of "entry" of the judgment is determined under Rule 8. 104(d). A
judgment is "entered" for appeal purposes on the date of its entry in the judgment book
or on the date it is filed with the superior court clerk. CCP 668. 5; Rule 8. 104(d);
Filipescu, supra, 41 Cal. App. 4th at 741; Ten Eyck v. Industrial Forklifts (1989) 216
Cal. App. 3d 540, 543-545.
For an appealable order, the date of "entry" is either (1) the date entered in the
minutes or (2) the date a signed order is filed. Rule 8. 104(d). However, a court' s
express direction of a written order does not change the effective date of the denial,
which occurs upon entry in the minutes of the minute order denying a new trial motion.
CCP 660.
E.
a matter of law and is deemed to have been filed immediately after entry of judgment.
Rule 8. 104(e)(1); County of Alameda v. Johnson (1994) 28 Cal. App. 4th 259, 261.
A notice of appeal filed after the announcement of an intended ruling but before
rendition of Judgment is not per se invalid. For "good cause" the appellate court has
discretion to validate the appeal by treating the notice as if it was filed immediately
after entry of the judgment. Rule 8. 104(e)(2); Stonewall Ins. Co. v. City of Palos
Verdes Estates (1996) 46 Cal. App. 4th 1810, 1827-1828.
F.
Amended judgments.
If, after entry of judgment, the trial court substantially modifies the judgment (e. g.
on motion for new trial or motion to vacate and enter a different judgment), the
amended judgment becomes the appealable judgment. A new appeal period starts to
run from notice of entry or entry of the amended judgment. Neff v. Ernst (1957) 48
Cal. 2d 628, 634; Dickens v. Lee (1991) 230 Cal. App. 3d, 985, 987.
But if the amendment merely corrects clerical error and does not involve the
exercise of judicial discretion, the original judgment remains the only appealable final
judgment and the amendment does not create a new judgment from which an appeal
may be taken. Mulder v. Mendo Wood Products, Inc. (1964) 225 Cal. App. 2d 619,
635.
If the amended judgment is subsequently declared void, e. g. because the trial
court failed to follow proper procedures on a new trial motion, the original judgment is
reinstated and a new appeal period commences from the date of reinstatement.
Marriage of Micalizio (1988) 199 Cal. App. 3d 662, 671-672.
The safest course with respect to modified or amended judgments is to appeal
timely from each judgment and also from each modification or amendment.
G.
Reconsideration.
A "valid" motion for reconsideration extends the time for appeal by the earliest of
(1) 30 days after the clerk' s mailing or a party' s service of the order of denial (or notice
of entry); (2) 90 days after the first motion to reconsider is filed, or 180 days after
entry of the appealable order. Rule 8. 108(e); Branner v. Regents of University of
California (2009) 175 Cal. App. 4th 1043 (motion for reconsideration was invalid for
lack of an affidavit and so did not extend time to appeal).
For orders that lead to entry of judgment, a motion for reconsideration is not
proper and does not extend the time to appeal at all. Passavanti v. Williams (1990) 225
Cal. App. 3d 1602, 1606; Crotty v. Trader (1996) 50 Cal. App. 4th 765;
Thus, a judgment)including a summary judgment) should be challenged in the
trial court only by statutory post-trial motions, not by a motion for reconsideration.
In unusual circumstances, an untimely appeal may be reviewed as a writ petition.
Drum v. Superior Court (2006) 139 Cal. App. 4th 845.
H.
the action. Rule 8. 108(b). But an order granting a new trial gives no party extended
time to appeal from the original judgment. Thus, a judgment-loser should either file or
join in the new trial motion to get the extension or file a "protective" notice of appeal
within the time period in Rule 2(a) while the new trial motion is pending.
The rules are not definitive on whether the same risk is created for a party who
does not join in a motion to vacate or motion for judgment NOV that is granted as to
only one of several co-parties. Therefore, the safest approach is to join in those
motions or file a notice of appeal within the period of Rule 8. 108.
I.
a subsequent notice of appeal is extended for 20 days after the superior court clerk
mails notification of the first appeal. Rule 8. 108(f). This 20-day extension is triggered
only by the first notice of appeal, and only if the first notice of appeal was timely.
Alioto Fish Co. , Ltd. v. Alioto (1994) 27 Cal. App. 4th 1669, 1680. The 20-day
extension applies even if the first appellant lacked standing. Light v. County of Los
Angeles (1990) 218 Cal. App. 3d 1287, 1295-1298.
If a party files a timely appeal from an order granting a new trial or an order
granting, within 150 days of entry of judgment)a motion to vacate or a JNOV, the time
for any other party to file a protective cross-appeal from the judgment or an order
denying JNOV is extended for 20 days after the superior court clerk mails notification
of the first appeal. Rule 8. 108(f). This extension applies only if the initial notice of
appeal was itself timely filed.
Because a cross-appeal may embrace only the order or judgment initially appealed
from, the 20-day extension of time for cross-appeal does not extend the time to appeal
from an order or judgment that was not the subject of a prior appeal. Fundamental
Investment Growth Shelter Realty Fund I= 1973 v. Gradow (1994) 28 Cal. App. 4th 966,
976-979. Thus, a post-judgment order enforcing a judgment is not cross-appealable
after an appeal from the judgment. Aheroni v. Maxwell (1988) 205 Cal. App. 3d 284,
295.
II.
NAME THE APPEALABLE ORDERS AND JUDGMENTS FROM
W HICH THE APPEAL IS TAKEN.
A.
Hence, where the appeal period from the judgment expires before the next
appealable order is entered, separate notices of appeal must be filed.
A separate notice of appeal is not required for costs or attorneys' fees if the
judgment awards unspecified costs and attorneys' fees "incidental" to the judgment
(such as routine costs of suit under sections 1032 and 1033. 5), leaving for later
determination only the amounts. Grant v. List & Lathrop (1992) 2 Cal. App. 4th 993,
998. But post-judgment award of discretionary costs that are not "incidental to the
judgment, " such as CCP Section 998 expert witness fees, must be separately appealed.
Fish v. Guevara (1993) 12 Cal. App. 4th 142, 147-148.
If the notice of appeal identifies only a portion of the judgment, then the
remaining unspecified portions of the judgment are not subject to appellate review.
Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal. App. 4th 612, 624-625 (notice of
appeal specifying
judgment of nonsuit on tenth cause of action did not permit appellate review of
judgment on pleadings on eighth cause of action). Partial appeals are dangerously
limiting and should be avoided. The specifications of prejudicial error can await the
drafting of the opening brief.
B.
904. 1. Other appealable orders are defined by the collateral order doctrine, which
renders appealable a judgment or order if (1) it is final as to the collateral matter, (2)
the subject of the judgment or order is collateral to the general subject of the litigation
and (3) the judgment or order directs the payment of money by the appellant or the
performance of an act by or against the appellant.
If the only order identified in the notice of appeal is not appealable, then the
appeal will likely be dismissed unless (1) the nonappealable order (e. g. , an order
granting a motion for summary judgment) led to the entry of an appealable final
judgment (e. g. , the summary judgment itself), and (2) the appellate court in its
discretion deems the appeal to be taken from the subsequently entered judgment.
Compare Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal. App. 4th 1007
(appeal from order granting motion permitted) and Francis v. Dun & Bradstreet, Inc.
(1992) 3 Cal. App. 4th 535 (same), with Jordan v. Malone (1992) 5 Cal. App. 4th 18
(declining to follow Francis). Counsel should not rely on the appellate court' s
discretion, but rather should always appeal from the appealable judgment. See Currie
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v. O' Connor Hospital (1993) 25 Cal. Rptr. 758 (depublished). ("We are wearying of
' appeals' from clearly nonappealable orders") (appeal dismissed).
If an order is not appealable and an appealable order will not issue soon enough to
provide effective appellate review, then the aggrieved party must file a writ petition.
C.
"liberally construed" in favor of its sufficiency. Rule 8. 100(a)(2); D' Avola v. Anderson
(1996) 47
Cal. App. 4th 358, 361. However, this policy of liberality cannot salvage an untimely
notice of appeal.
III.
NAME ALL APPELLANTS.
A notice of appeal must identify the appellant. Rule 8. 100(a)(1).
To the extent that an appeal is purportedly taken by a party not named in the
notice of appeal, that portion of the appeal may be dismissed because the judgment is
considered final as to the nonappealing parties. Estate of McDill (1975) 14 Cal. 3d 831,
840.
However, one case permitted an "amendment" to the notice of appeal to permit
review of the judgment against an employee where the original notice named only the
employer as the appellant. Beltram v. City of Los Angeles (1977) 66 Cal. App. 3d 711.
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IV.
STEPS FOR FILING THE NOTICE OF APPEAL AND
DESIGNATION OF RECORD.
A.
"Clerk, Court of Appeal, " Gov. Code 68926, and a $100 processing deposit payable
to the superior court clerk. Gov. Code 68926. 1. Rule 8. 100(b). Verify the filing
fees in advance by calling the superior court clerk.
For the reporter' s transcript, Rule 8. 130(b) requires the appellant to make a
deposit: $325/day for proceedings up to three hours; $650/day for proceedings over
three hours. But if the reporter will accept payment upon completion, appellant may
file with the record designation the court reporter' s declaration waiving the daily
deposits for the reporter' s transcript.
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Plaintiff,
NOTICE OF APPEAL;
DESIGNATION OF REPORTER' S
TRANSCRIPT; ELECTION OF
APPENDIX IN LIEU OF CLERK' S
TRANSCRIPT.
v.
BLACK AND WHITE COMPANY,
Defendant
NOTICE OF APPEAL
PLEASE TAKE NOTICE that plaintiff and appellant ______________ [name
each appellant] hereby appeals from the judgment [and/or appealable order] [and/or
order granting/denying judgment notwithstanding the verdict] filed on ____ [name each
appealable order and judgment and give its date of entry], of which notice of entry was
served on ____ [date]. [If applicable: The time to file this notice of appeal was
extended under Rule 3 by the denial of timely post-trial motions to ____ [date]. The
order dated _____ denying the plaintiff' s motion for judgment notwithstanding the
verdict is separately appealable within 60 days of notice of its entry. ]
Appellant herewith provides a check for $655 payable to the Clerk, Court of
Appeal.
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Respectfully submitted,
LAW OFFICE OF
By______________________________________
Attorney for [Plaintiff/Defendant]
[Proof of Service]
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