If you’ve ever sought the advice of an appellate attorney, or have any experience with appellate law, you probably already know that timely filing of the notice of appeal is critical. In a civil appeal, allowances for a tardy notice are limited to public emergencies, such as earthquake, fire, or the destruction of the courthouse. (Cal. Rules of Court (“CRC”) 8.66.) Otherwise, the appellate court must dismiss a late filed appeal. (CRC 8.104; see also CRC 8.60 [appellate court may not relieve a party from failure to file a timely notice of appeal].)

The deadline to file a notice of appeal is ordinarily governed by CRC 8.104 (re “normal deadline”). However, there are scenarios under which an extended deadline applies under CRC 8.108 (“extended deadline”). In particular, the denial of certain valid post-trial motions—motion for new trial, motion to vacate judgment, motion for judgment notwithstanding the verdict—will allow all parties extended time to file a notice of appeal of the underlying judgment.

When the 9th Circuit issued Monster Energy Company v. City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019), there was immediate concern over how far the decision would extend and how many cases it would spawn. The decision vacated an arbitral award in favor of Monster Energy. The court found there was evident partiality “given the Arbitrator’s failure to disclose his ownership interest in JAMS, coupled with the fact that JAMS has administered 97 arbitrations for Monster over the past five years.” Id. at 1132.

As the dissent pointed out, the decision left open a number of troubling questions. For example, “how many prior arbitrations must a corporation have engaged in with an arbitration firm for there to be nontrivial business dealings…that require disclosure?” Id. at 1141. Or “must prior arbitrations with the lawyers or law firms representing the parties also be disclosed?” Id. The dissent predicted there would be endless litigations to resolve the questions. Id.  

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.”).