Protecting the record for appeal is always a popular topic for legal education programs. After all, securing the hard-fought trial victory or turning around the case that went off the rails can depend on making sure a proper record is made for appellate review. But the most perfectly protected record is meaningless if the notice of appeal is untimely. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (absent timely filed notice of appeal, appellate courts lack jurisdiction). This is a tragedy that should never happen, but it does.
For state court appeals, the place to begin is California Rules of Court, rule 8.104. The “normal time” to appeal is 60 days. Two months to file the notice seems generous. But 60 days from when? And is it always 60 days? A careless examination of rule 8.104 can lead to problems. Fatal problems.
The warnings begin even before one encounters the 60-day component. The first two words of subdivision (a), are “Normal time.” The inexperienced should notice the implication and should be reading what follows very carefully. Subdivision (a)(1) begins with a red flag, “Unless a statute or rules 8.108, 8.702, or 8.712 provide otherwise … .”
Rule 8.108 can enlarge the time to appeal (if specific prerequisites are met). But rule 8.702 relates to CEQA appeals and has a five-day deadline. Rule 8.712 relates to dismissal or denial of a petition to compel arbitration, and carries a 20-day deadline. And don’t forget the words, “Unless a statute … provides otherwise … .” Numerous statutes expressly state the time to appeal, and several contain shorter deadlines. When in doubt, ask an appellate lawyer.
So, for purposes of perfecting the appeal, the first step is to read and understand rule 8.104(a)(1) and resolve any doubts, before moving on. If the time to appeal is not governed by “a statute or rules 8.108, 8.702, or 8.712,” then go on to subdivisions (a)(1)(A) & (B). Now, the 60 days will likely come into play. But the question remains, what causes the 60-day clock to run?
The answer is “the earliest of” either “clerk” service, or “party” service, whichever occurs first. At this point, the reader should understand that the operative trigger for time to appeal may have been something the clerk does, or something a party does, and that if both things happen, the earliest one triggers the clock on time to appeal.
But what things start the clock? When “the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served.” Rule 8.104(a)(1)(A). And, when “the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service.” Rule 8.104(a)(1)(B).
So the service date is the trigger date if what was served was either a “document entitled ‘Notice of Entry’” or simply a “filed-endorsed copy of the judgment.” If both events occur, the earliest event triggers the clock. If neither happens (unlikely) then the last day to file a notice of appeal is “180 days after entry of judgment.” Rule 8.104(a)(1)(C).
Does rule 8.104 apply only to judgments? No. Rule 8.104(e) states that where an order is an appealable order, 8.104(a)’s discussion of a “judgment” also includes appealable orders. (A starting point, but only a starting point, on whether an order is an appealable order is Code of Civil Procedure section 904.1.)
This post is only a starting point for tracking the all-important time to file the notice of appeal. As should be apparent given the stakes, time should be devoted to confirming one’s assumptions are correct, and that one’s interpretation of Rule 8.104 is dead on. The best way to be absolutely certain is to get someone else involved in the analysis. After all, when it comes to perfecting the appeal, the notice of appeal is either timely, or the appeal has just gone up in smoke.
Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and other publications.
