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:
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.