In a prior post, we discussed avoiding the death knell of an untimely notice of appeal in California’s state courts (see Jan. 29, 2021). But what else can go wrong with a notice of appeal? A lot.
Even though the notice of appeal is a decidedly simple filing, it should come as no surprise that there are plenty of mistakes that have been, and can be made. Fortunately, only a small subset of mistakes have been deemed un-correctable if the deadline to appeal has passed. See CRC 8.100(a)(2) (“The notice of appeal must be liberally construed.”); see also K.J. v. Los Angeles Unified School Dist. (2020), 8 Cal.5th 875, 884 (“Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function—to provide notice of who is seeking review of what order or judgment—so as to properly invoke appellate jurisdiction.”).
Omitting a portion of the order or judgment from the appeal or omitting reference to orders or judgments that are appealable
There is a limit to the liberal construction standard. Courts have held that where the notice of appeal is unambiguous and/or specific, the standard is not applicable.
For example, if the notice of appeal specifies only a portion of an order or judgment to be appealed, the unspecified portions are not included in the appeal. See e.g. Unilogic v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 (refusing to review judgment on eighth cause of action where the notice of appeal specifically states an intention to appeal “from the Judgment on the Tenth Cause of Action”).
Along similar lines, if the notice of appeal specifies only certain orders or judgments as the subject of the appeal, orders or judgments that are separately appealable but not specified are not included in the appeal. See e.g. In re J.F. (2019) 39 Cal.App.5th 70, 76 (“The policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.”) (internal quotations omitted), reh’g denied (Sept. 12, 2019), review denied (Nov. 13, 2019); Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 240 (refusing to review order granting a new trial where notice of appeal mentioned only the underlying judgment). This is particularly true for orders or judgments that are issued close in time. Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156 (“[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.”) (internal quotations omitted).
The takeaway is that the appellate court will not read between the lines to add things when the notice of appeal is clear and expressly limited in some fashion by the appellant. Don’t expect the court to be sympathetic if you specifically identify only a portion of the judgment, forgetting to reference other portions of the order or judgment you wish to appeal, or forget to reference all separately appealable orders or judgments, for inclusion in a single notice of appeal. But query, why file a notice of appeal singling out only a portion of the judgment? And be careful of filing a single notice of appeal as to multiple appealable orders/judgments. Remember, each one requires a timely notice of appeal. See CRC 8.104 and 8.108.
Failing to name all appealing parties
Appellate courts are often generous in construing a notice of appeal to include inadvertently omitted parties. See e.g. Beltram v. App. Dep’t (1977) 66 Cal.App.3d 711, 714-716 (construing notice of appeal to include an omitted party where inadvertent omission did not prejudice or mislead appellees); Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15 (“In the absence of prejudice to defendant, we deem the notice of appeal to include an undesignated attorney who was found jointly and severally liable for sanctions.”); Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974 (deeming “a notice that named only a party to include his attorney, who had filed the notice and against whom the sanctions had been assessed”).
Most recently, in K.J. v. Los Angeles Unified School Dist., supra, 8 Cal.5th at 887-888, the California Supreme Court disapproved a line of cases strictly holding that a notice of appeal from a sanctions order cannot be construed to include an omitted attorney. The Court rejected such a bright-line approach and held that the “rule of liberal construction applies to defects in the designations of the parties, including errors involving the omission of an intended appellant.” Id. at 888.
The Court cautioned, however, that there remain circumstances where construing the notice to include the omitted attorney may be inappropriate. Id. at 889 (“There may be situations where an omitted attorney’s intent to join in the notice of appeal is not sufficiently clear form the record, or where the omission has otherwise caused prejudice to the respondent, rendering the attorney’s inclusion in the appeal improper.”).
Thus, while courts have leaned even further towards overlooking party omissions in the notice of appeal, it is always better to be safe than sorry. Take care to name all of the appealing parties in the notice of appeal. As discussed above, there are few mistakes in the notice of appeal that will be fatal. But best practices means eliminating any possible commission of the ones that are fatal. As for the nonfatal type, those may result in less severe repercussions, but should still be avoided for other types of consequences such as the appearance of incompetence, wasted/duplicative efforts, and above all, disgruntled clients.
Rosanna is an attorney in the firm's Intellectual Property Practice Group and Appellate Practice Group. She works on patent, trademark, copyright litigation matters, IP transactions involving licensing and due diligence, and brings her analytical skills to a wide range of appeals.