Appellate Court Acknowledges "The Rules Governing the Timeliness of an Appeal Are Complex"​; Appeal Dismissed

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. Here is just a sampling of the confounders in deciding when and what to appeal:

• When does the time to appeal start running? From the minute order? From a later, more formal order? From the notice of ruling? From the notice of entry?
• Does the 60-day deadline apply? Or is it the 180-day deadline? Was there a valid notice of entry? Did the clerk's service of the order start the 60-day deadline?
• Will the appeal deprive the trial court of jurisdiction to hear post-order or post-judgment motions?
• Will the appeal stay the proceedings?
• Do I have to file post-order or post-judgment motions to preserve issues for appeal?
• Do my post-order or post-judgment motions extend the time to appeal? What do I do if it is unclear? What if the court decides my motion is invalid? Should I appeal just to be safe?
• There are multiple orders I want to appeal. Do I have to appeal all of them separately? Or can I list them all in one notice of appeal?
• What if I only want to appeal part of the court's order or judgment?

A few of these issues arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

1. No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.
2. Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The CL Brookshire case arose from a June 27, 2018 order sustaining the defendant's demurrer. Although the demurrer only challenged two of plaintiff's eight claims, the court dismissed the entire case with prejudice. So that seemed like a pretty good issue to raise on an appeal.

Instead, the plaintiff decided to try a motion for reconsideration. These are a favorite of trial counsel, because it is often believed that the trial court might still see the errors of its ways and correct course. And it is much faster and less expensive than an appeal.

Motions for Reconsideration and Motions to Vacate May Pose Risks to an Appeal:

But: a motion for reconsideration presents risks to a potential appeal. And so it proved here.

The plaintiff timely filed the motion for reconsideration. But the court denied that motion because the declaration was not signed. On appeal, the Court of Appeal held this amounted to a ruling the motion for reconsideration was invalid. Thus, it could not extend the deadline to appeal the underlying order of dismissal.

(Note: If there had been any factual issues the plaintiff had wanted to challenge, this would have been fatal to the plaintiff's ability to do so on appeal. As the normal time to appeal had expired, an appeal was only timely within 30 days of the denial of a valid motion for reconsideration. (Cal. Rules of Ct., rule 8.108.) No valid reconsideration motion, no extension of the time to appeal. Here, however, the plaintiff's challenge of the demurrer ruling raised questions of law, so those challenges could have been raised in a motion to vacate.)

Four months later, the plaintiff filed a motion to vacate the dismissal pursuant to Code of Civil Procedure section 473(d). That was denied, too. This time, the appellant did file a notice of appeal.

But then the plaintiff thought he'd take another stab at it with the trial court. So he dismissed that appeal so he could file another motion to vacate.

This was a fatal move. The second motion to vacate apparently was not decided by the trial court before the plaintiff filed a third motion to vacate. That motion was denied.

Now finally on appeal, the Court of Appeal held the plaintiff had waited too long.

“The rule allowing an aggrieved party to challenge an order void on its face at any time does not mean a party may perpetually move to vacate the order until he or she receives a favorable ruling.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021, fn. 13.) “ ‘Somewhere along the line, litigation must cease.’ ” (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) The first motion to vacate (filed in January 2019) was the only motion that extended plaintiff's time to file a notice of appeal and the timeliness of his appeal evaporated with plaintiff's dismissal of that appeal.

Besides, the plaintiff failed to appeal within the 30-day period after the denial of the motion to vacate. Instead, the plaintiff waited until 49 days afterward.

The Upshot: Originally, the plaintiff had a very sound appellate challenge: the trial court had dismissed all eight claims in the complaint, but on the basis of challenges to only two of them. And orders sustaining an initial demurrer without leave to amend are among the most likely to be reversed on appeal (perhaps the most likely). But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.