Ruling provides guidance on notices of appeal

Filing a notice of appeal on time is crucial. If you miss the deadline, it doesn't matter how brilliant your merits arguments are or how well-written your brief is - the Court of Appeal will be required to dismiss the appeal for lack of jurisdiction, and the merits will be beside the point. A recent decision from the 4th District Court of Appeal, Division 3 provides a helpful review of the relevant deadlines, as well as a reminder that when an appeal's timeliness is in doubt, it may be worth asking the court to rule on that issue at the outset.

California Rule of Court 8.104 establishes the basic deadlines for appealing from appealable orders and judgments in state court. The deadline is the earliest of three dates: (1) 60 days after the superior court clerk serves a document titled "Notice of Entry" or a file-stamped copy of the judgment/order, showing the date of service; (2) 60 days after any party serves either of the same documents with a proof of service; or (3) if no notice of entry is given, 180 days after entry of the judgment or order.

There are some general rules for calculating these deadlines: start counting from the day after notice is served or the order entered. Code Civil Procedure Section 12. The days to count are calendar days, not court days. Service by mail, overnight delivery or fax does not extend the deadline. Code Civil Procedure Section 1013(a). And if the final day to appeal falls on a Saturday, Sunday or holiday, the deadline is automatically extended to the next day that the court is open. Taliaferro v. Davis, 217 Cal. App. 2d 215, 216 (1963).

The recent decision in Marriage of Lin, 2014 DJDAR 4523 (Apr. 10, 2014), highlights another rule for calculating deadlines: The criteria for the 60-day deadline are narrowly interpreted, and if their specific terms are not satisfied, the longer 180-day deadline will apply.

Lin was an appeal from a domestic violence restraining order. The appellant filed his notice of appeal 119 days after the restraining order was issued. The respondent moved to dismiss the appeal as untimely. She argued that the 60-day deadline applied because appellant was present at the restraining order hearing, and a Judicial Council form provides that a person appearing at the hearing is considered "served" with the restraining order. The appellate court rejected that argument and held that the 180-day deadline applied, making the appeal timely.

Lin emphasized that courts construe rules concerning the time to file an appeal in favor of appellants because the deadlines cut off appellants' access to the courts. Under Rule 8.104(a), the 60-day deadline to appeal is triggered only if a party serves notice of entry or a file-stamped copy of the judgment showing the date it was served. That indisputably did not happen in Lin. The 60-day deadline therefore did not apply.

Lin held it was irrelevant that for purposes of the restraining order's enforceability, the appellant was deemed "served" with the order on the day he appeared at a hearing on the order. The court held there are no unique jurisdictional time limits for restraining order appealability, and absent strict compliance with the Rule 8.104 requirements for triggering the 60-day deadline, the 180-day deadline applied.

Lin also noted an aspect of deadline calculation that is easy to overlook, and perhaps counterintuitive: A trial court stipulation by the parties to waive notice of an order has no effect on the deadline to appeal. Cal. Rule of Court 8.104(a)(3). In other words, a waiver of notice does not mean that the aggrieved party is deemed to have been served with "Notice of Entry" or a file-stamped copy of the order at the hearing and that any notice of appeal is due 60 days later.

Rather, the default is that even where the parties have waived notice, the aggrieved party has 180 days from entry of the order to appeal. The shorter 60-day period applies only if the court or a party serves notice of entry of judgment or a file-stamped copy of the judgment. That means that even if the parties have stipulated to waive notice, a prevailing party who wants to trigger the time to appeal must still serve a document titled "Notice of Entry" or a file-stamped copy of the order, accompanied by a proof of service.

Lin also offers one additional tip where the timeliness of appeal is in doubt: If the respondent moves to dismiss the appeal early on, consider asking the appellate court to rule on the motion immediately instead of waiting to address it after briefing on the merits.

In Lin, the respondent moved to dismiss the appeal less than a month after the notice of appeal was filed, and the appellant requested that the court decide the motion prior to briefing. Appellant's request noted that this approach might save both judicial resources and the parties' financial resources, because if it turned out that the appeal was untimely there would be no merits briefing. The Court of Appeal agreed to the request and tolled the time to file the appellant's opening brief pending its ruling on timeliness.

An early ruling on timeliness did not ultimately conserve resources in Lin, because the court's decision that the appeal was timely means the parties will have to brief, and the court decide, the merits. But if the appeal had been untimely, the early ruling could have made a big difference. In Starpoint Properties LLC v. Namvar, 201 Cal. App. 4th 1101, 1109 (2011), for example, the appeal was fully briefed and argued before the court dismissed it as untimely. Lin indicates that it might be possible to avoid such unnecessary expenditures of time and resources by requesting that the court rule on a motion to dismiss before the case is briefed. The court may not always agree - sometimes appealability deadlines are intertwined with the merits issues and difficult to decide on their own. But if the court does agree, this approach has the potential to be more efficient for everyone involved.

The bottom line: Read the appeals deadline rules carefully and, if the opposing party raises an issue regarding the timeliness of your appeal, consider asking the court to decide the issue sooner rather than later.