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What is the deadline for filing a notice of appeal?

California Rule of Court 8.104(a) provides the basic rule for when an appellant must file a notice of appeal. Rule 8.104(a) states that the deadline is the earliest of the following, subject to statutes to the contrary and Rule 8.108: 60 days from date of mailing notice of entry of judgment by the clerk of the court or 60 days from date of service of notice of entry by the party, or 180 days from the date of entry of judgment if no notice of entry is given. The deadline is jurisdictional: Failure to timely file a notice of appeal requires dismissal for lack of jurisdiction over the matter. Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666; Rule 8.104(b). No matter how strong the arguments on the merits of the appeal, the appellate court does not have the power to rule on them. At that point a call to the malpractice carrier would be in order.

 

Notice of entry of judgment can be either a document entitled "Notice of Entry" or a file-stamped copy of the judgment or appealable order appealed from. Rule 8.104(a)(1),(2); Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210. The notice of entry need not state when judgment was entered or even state the correct date of entry. Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 85; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1123. The notice needs only to give written notice to the losing party that judgment has been entered. Delmonico, 5 Cal.App.4th at 601. The 60-day period begins with service or mailing of notice of entry. Rule 8.104(a); Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011(service by party); Hughes v. City of Pomona (1998) 63 Cal.App.4th 772, 775 (clerk's mailing).

 

Usually the party provides notice of entry. It is generally the prevailing party's duty to do so pursuant to California Code of Civil Procedure (hereafter referred to as "CCP") 664.5(a). However, in certain circumstances the court clerk provides notice. Those circumstances generally involve instances in which one of the parties appears in pro per or the court orders the clerk to give notice (CCP 664.5(b),(d)). In addition, the clerk must give notice of entry in marital dissolution cases. Rule 5.134. CCP 664.5(a) expressly makes the general rule of party notification inapplicable in marital dissolution cases.

 

The clerk may sometimes give notice even when not required. In those instances the clerk's mailing triggers the 60-day time limit. Hughes, 63 Cal.App.4th at 776. The court in Hughes reached its decision by looking at the 1990 amendments to Rule 2(a). One amendment was added to the end of subdivision to provide that a file-stamped copy of the judgment could be used in place of the document entitled "notice of entry." Rule 8.104(a), (previously Rule 2(a)) previously read "Except as otherwise provided by Code of Civil Procedure section 870 or other statute, a notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to section 664.5 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest, unless the time is extended as provided in rule 3."

 

The other amendment rewrote 8.104(a) and deleted the reference to CCP 664.5. The effect of these amendments, the court found, was to make clear that the situations in which a clerk's notice triggered the 60-day period were not limited to those described in CCP 664.5 and that the file-stamped copy sent by the clerk indeed triggered the 60-day period in which to file a notice of appeal. Hughes, 63 Cal.App.4th at 776. Left unaddressed in Hughes were the issues of whether the same rule applies when a party sends out notice of entry of judgment in those cases in which the clerk is required to do so, for example in a marital dissolution case.

 

However, the 60-day limit presumes an appealable order or judgment. In Masonite Corp. v. County of Mendocino Air Quality Management Dist. (1996) 42 Cal.App.4th 436, the court stated that: "As a threshold matter we dispose of CHU's challenge to our jurisdiction to undertake appellate review of the issue due to Masonite's failure to appeal from the ruling on the Category 2 information on September 6, 1994. Masonite maintains, and we agree, that the trial court's order of September 6, 1994, was interim, and did not dispose of all of the issues presented by the motion for preliminary injunction. Thus, the interim order was not appealable, and did not commence the 60-day time limit of California Rules of Court, rule 2(a). (citations omitted) Masonite filed a timely appeal from the final judgment on the motion for preliminary injunction, which was dated June 1, 1995. The motion of CHU to strike the appeal in part is denied." Masonite, 42 Cal.App.4th at 453.

 

When neither the clerk nor the party give notice of entry, Rule 8.104(a)(3) applies. It provides that the notice of appeal must be filed no later than 180 days after the date of entry of the judgment or appealable order (Rule 8.104(f) states that for purposes of subdivisions (a) and (e) of Rule 8.104, an appealable order is treated as a judgment). What is date of entry? Rule 8.104(d) provides an answer. It defines "date of entry" as one of four possibilities: "(1) The date of entry of a judgment shall be the date of its entry in the judgment book or, in a county following the procedure specified in Code of Civil Procedure section 668.5 in lieu of maintaining a judgment book, the date of filing the judgment with the clerk pursuant to that section. (2) The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless the minute order entered expressly directs that a written order be prepared, signed, and filed, in which case the date of entry shall be the date of filing of the signed order. Written orders after hearing prepared pursuant to Rule 3.1312 or a comparable local rule are not orders prepared pursuant to the direction of a minute order.  (3) The date of entry of an appealable order which is not entered in the minutes shall be the date of filing of the order signed by the court. (4) The date of entry of a decree of distribution in a probate proceeding shall be the date of its entry at length in the judgment book or other permanent record of the court."

 

Rule 8.104(d)(2) bears some note. Rule 3.1312 (former Rule 391) and many local rules require that the prevailing party prepare an order after hearing, in some ways making an order to prepare always present. However, the Court in Hughey v. City of Hayward (1994) 24 Cal.App.4th 206 held that those local rules do not read into [current] Rule [8.104(d)(2) the prerequisite express direction and that therefore waiting until preparation of a formal written order could be a trap for the unwary. The Court in Hughey called on the Judicial Council to enact a rule to clarify this matter. The Judicial Council did so. It added a sentence to the end of Rule 2(b) that reads: "The fact that a written order is to be prepared under the provisions of rule 391 or a similar local rule does not constitute an express direction in the minute order that a written order be 'prepared, signed, and filed' within the meaning of (2) above."  The last portion of Rule 8.104(d)(2) similarly states:  "a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order."

 

There are ways in which the 60-day period can be extended. Rule of Court 8.108 (former Rule of Court 3) extends the time in which to appeal from denial of certain post-trial motions:  

1.  Denial of motion for new trial. CRC 8.108(b) (former Rule 3(a)) extends the appeal deadline to 30 days from the date of mailing by the clerk or service by a party of notice of entry of the order denying a motion for new trial. That 30-day deadline applies whether the trial court denied the motion by express order or by operation of law from not ruling on the motion before its 60 days in which it had jurisdiction after entry of judgment. CCP 660. See also Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1486-1487.

A new trial motion filed after the CCP 659 jurisdictional deadline is invalid and does not extend the normal appeal period. Therefore, if a new trial motion is denied as untimely, the time for filing an appeal runs concurrently without any stay or extension. Ramirez v. Moran (1988) 201 Cal.App.3d 431, 435-437; Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802

However, there is no extension of appeal period by premature motion: A new trial motion can be filed before "entry" of the judgment. CCP 659; see Wenzoski v. Central Banking System, Inc. (1987) 43 Cal.3d 539, 541, fn. 2 But the motion is premature if filed before there has been a "decision" (e.g., a verdict in a jury trial or rendition of judgment or dispositive order in a court trial). A premature new trial motion is void and does not extend the time for appeal. Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 151-152.

Under California Rule of Court 8.108(b)(1)(C), the outside time limit in which to file a notice of appeal following denial of a motion for new trial is 180 days after entry of judgment. This is the same standard that governs the time in which to file notice of appeal in which no notice of entry is given pursuant to CRC 8.104(a).

2.  Denial of a statutory motion to vacate.  For example, a motion brought under CCP 473, 663, or a non-statutory motion based on extrinsic fraud or mistake will extend the time in which to file a notice of appeal.  CRC 8.108(c) (former Rule 3(b)); Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.  The deadline to file a notice of appeal in such instances is the: 

    a.  Earliest of: 30 days after the date of notice of entry by a party or date of mailing by the clerk of an order denying the motion. CRC 8.108(c)(1); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 664, fn. 3; 

     b.  90 days after filing the first notice of intention to move to set aside; or

      c. 180 days after entry of the judgment (the outside time limit). CRC 8.108(c). 

           The same rules about timely motions for new trial also apply here.  If the motion is not timely or valid, i.e. is a statutory motion or based on extrinsic fraud/mistake then there is no extension.  A recent case drives home the importance of this point:  In Payne v. Rader (2008) 167 Cal.App.4th 1569, 2008 DJDAR 16553, the Third District dismissed an appeal of a denial of a motion to vacate filed pursuant to CCP section 663.  The Court in Payne held that a motion to vacate based on CCP section 663 did not lie from an erroneous ruling on a demurrer, since a 663 motion arises when a different legal conclusion must be drawn following factual findings.  A demurrer only tests the sufficiency of the pleadings and leave to amend would only allow the appellant to file further pleadings.  By contrast, section 663 provides for entry of a new and different judgment based on factual findings.  Since the relief the appellant sought was unavailable by this motion, the motion was not valid and Rule 8.108's extension did not apply.  Payne, 2008 DJDAR at p. 16554.

3.  Extension by denial of motion for judgment NOV, whether or not that party also unsucessfully moved for a new trial: If any party serves and files a valid motion for judgment notwithstanding the verdict, the time to appeal the judgment is extended for all parties by:  (1) 30 days from the date of service of notice of denial or date of mailing by the clerk of notice of entry of denial of the motion for all parties; (2) 30 days from denial by operation of law; or (3) 180 days from the date of entry of judgment.  

The revised Rule eliminates a trap for the unwary:  Under the old rule, an order denying judgment NOV, the 30-day "extension" was really a restriction, not an extension, since that order is itself appealable (CCP 904.1(a)(4)) and thus, rendered simultaneously with the "extension"-triggering denial of new trial, would otherwise invoke a longer 60-day deadline.  The new rule set forth in CRC 8.108(d)(2) provides that in those instances the longer 60-day time period set forth in CRC 8.104 applies, unless the deadline is further extended pursuant to Rule 8.108(f)(2), which provides for protective cross-appeals to be filed within 20 days of notification by the clerk of the filing of the notice of appeal of the first appeal.

A newer provision, CRC 8.108(e), expressly provides for a 30-day extension of time in which to appeal following denial of a motion to reconsider an appealable order.  The triggers are the same as for those following denial of a motion to vacate:  the earliest of 30 days from notice of entry of denial by mailing by the clerk or service by a party; 90 days after the first motion to reconsider is filed; or 180 days after entry of the appealable order.  The Legislative Comment to this provision states that this rule makes no statement as to whether an order denying reconsideration is itself appealable or not.  A split of authority remains on that point.  Compare Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710-711 (appealable if motion based on new facts) with Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 (not appealable under any circumstances).

Finally, both protective and non-protective cross-appeals may be filed up to 20 days following notification by the clerk of receipt of the first notice of appeal.  CRC 8.108(f).

There may be situations in which a party files a notice of appeal too early.  California Rule of Court 8.104(e) addresses those situations.  It judgment is rendered though not yet entered, the appellate court will construe the notice of appeal as filed the day after the judgment is eventually entered.  However, if a party files their notice of appeal too early, before judgment even rendered, an overworked appellate court may not exercise its discretion under CRC 8.104(e) to "save" a prematurely filed notice of appeal by deeming it from a later-filed judgment entered the day before notice was filed. Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684; Shpiller v. Harry C.'s (1993) 13 Cal.App.4th 1177; Jordan v. Malone (1992) 5 Cal.App.4th 18; Modica v. Merin (1991) 234 Cal.App.3d 1072 (all addressing former CRC 2).

   The deadlines for filing a notice of appeal are jurisdictional.  Counsel for the would-be appellant must therefore be alert to the situation they face.  If they have any uncertainty as to when the time begins to run and it looks as if they have been sent notice of entry or a file-stamped copy of the appealable order or judgment, they should plan on filing their notice of appeal within 60 days of that notice.

 

 

 
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