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Appellate Court Rejects Covid Excuses for Appeal Filed One Day Late

Tim Kowal     March 30, 2021

I previously reported a case suggesting that a legitimate Covid excuse might afford some relief from the otherwise strict deadline to file a notice of appeal. Yesterday, however, another case rejected just such a argument.

The recent case is Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished). Plaintiff's complaint, alleging injury during a science demonstration, was dismissed upon summary judgment. A notice of entry of judgment was served on October 29, 2020. Plaintiff-appellant filed his notice of appeal on December 29, which was 61 days later.

One day late.

Appellant urged that the trial court was closed for most of December due to Covid. His attorney's office was also closed due to a county stay-home order.

But the Court rejected these arguments. Appellant could have filed his notice of appeal via the "drop box" provided by the trial court. Court and office closures, the court abruptly held, do "not excuse appellant from the jurisdictional deadline for filing his notice of appeal, even during a challenging time when many people were working from home."

Contrast the approach taken by the First District six months ago in, the published opinion of Rowan v. Kirkpatrick (D1d3 Sep. 4, 2020) 54 Cal.App.5th 289. While the Covid-related extended deadlines likewise there had passed, "Courts have long recognized the policy, based on the remedial character of the right of appeal, to accord that right in doubtful cases when it can be accomplished without doing violence to applicable rules."

The Rowan court concluded: "Here, however, [appellant] does not contend she was prevented in any way from timely filing notices of appeal...."

Appellant in Yuzon likely had some hope of obtaining some relief, given his delay was a mere one day. But the Yuzon court was not inclined to do so.

Note, however, that the Yuzon court cited Rowan, stating appellant "has not shown that he was otherwise excused from filing a timely notice of appeal." Perhaps this suggests that, although the courts and offices were closed, appellant did not establish that this in fact prevented him from timely filing his appeal. Appellate courts do have ways of bending their "jurisdictional" limits when they are inclined to do so. But it did not happen here.

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. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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