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Perfecting the Appeal: Appealability and Timeliness

Perfecting the Appeal: Appealability and Timeliness

Late appeal deemed constructively filed on time

Last updated on June 19, 2024 by Tim Kowal
Because the deadline to appeal is jurisdictional, the court cannot excuse a late appeal, even for very, very good reason. Sorry, no exceptions. Well, there are five official exceptions. And sometimes the court looks the other way on untimely appeals. But other than that, the rule is iron-clad. One of those exceptions is constructive filing,...Read More >>

Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents

Last updated on May 30, 2024 by Tim Kowal
In a split opinion that “rather obviously invites a grant of review,” the Second District Court of Appeal in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] held that, unless parties expressly invoke the California Arbitration Act, the Federal Arbitration Act preempts the CAA rule that deems any late fees...Read More >>

You can appeal from a postjudgment order, but not to challenge the judgment

Last updated on February 14, 2024 by Tim Kowal
After entering a visitation order for great-grandparents, the court entered another order modifying it. The mother appealed from the modification. The court in Rodriguez v. Rodriguez (D5 Feb. 9, 2024 No. F086277) [nonpub. opn.] held that, yes, the modification was appealable, but the issues the mother was challenging were in the first order. And the...Read More >>

Order granting motion to enforce settlement held not appealable, furthering a split of authority

Last updated on January 8, 2024 by Tim Kowal
Are orders on motions to enforce settlement agreements appealable? They are not expressly listed in the appealability statute. But appellate courts often treat them as functionally the same as a judgment. That did not happen, however, in House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.], which dismissed...Read More >>

Where a moot appeal means summary REVERSAL

Last updated on November 15, 2023 by Tim Kowal
An appeal becomes moot when something happens so that nothing the Court of Appeal might do about the judgment will help. Like when a challenged law is repealed, or when a disputed real property is sold. When the appeal is moot, the appeal is dismissed. Except every so often, when mootness means the appeal results...Read More >>

Appeal using the JC form Notice of Appeal nearly gets dismissed

Last updated on September 12, 2023 by Tim Kowal
The Judicial Council provides a form Notice of Appeal. But be careful if you use this form because it asks for extra information that could be used to limit the scope of your appeal or cause you to appeal from the wrong order. That is what nearly happened in Lacour v. Marshalls of California (D1d4...Read More >>

An amended order suspends the right to appeal from the original order

Last updated on September 11, 2023 by Tim Kowal
When a judge enters an order, and then later modifies the order, you would probably guess that you should appeal from the modified order. And you would be right. But now try this: Voiding the modified order reinstates the original order, and the time to appeal from the original order has expired. What now? The...Read More >>

San Berdo Supervisor Challenge Not Moot, Split Appellate Court Holds

Last updated on June 14, 2023 by Tim Kowal
The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the...Read More >>

Botched cat euthanization claims can go forward, appellate court holds

Last updated on June 5, 2023 by Tim Kowal
Animal harm can be difficult to adjudicate in people courts. But the cat owner in Berry v. Frazier (D1d3 May 15, 2023 No. A164168) --- Cal.Rptr.3d --- (2023 WL 3445168), who was allegedly defrauded by her vet into a “horrific and painful” form of euthanasia for her pet, was able to reverse the order dismissing...Read More >>

Order was file-stamped, but did not attach the POS, so it did not trigger the 60-day deadline to appeal

Last updated on May 17, 2023 by Tim Kowal
The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account...Read More >>

When it comes to writs of administrative mandamus, the appealability rules are confused

Last updated on May 10, 2023 by Tim Kowal
When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late (like in this previous case). But that is not what happened in the mandamus case of County...Read More >>

Untimely & Defective Notices of Appeal: April 2023 Cases & Tidbits

Last updated on May 2, 2023 by Tim Kowal
On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine: Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing....Read More >>

File-stamped signed order triggers the 60-day deadline to appeal, even if the file-stamp itself isn’t signed

Last updated on April 26, 2023 by Tim Kowal
The first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690...Read More >>

A stipulated reversal on appeal may allow parties to instruct the trial court

Last updated on April 19, 2023 by Tim Kowal
Sometimes when a case on appeal settles, the settlement will involve stipulating to reversal of the judgment. That much was no surprise in the stipulated reversal of a citizens group’s challenge to the City of Palo Alto’s utility rate structure in **************************Green v. City of Palo Alto (D6 Mar. 27, 2023 no. H049436) 2023 WL...Read More >>

The absolute-no-matter-what jurisdictional deadline to appeal… and its five exceptions

Last updated on April 13, 2023 by Tim Kowal
Everyone knows two things about the deadline to appeal: The deadline is 60 days. You can get an extension if certain posttrial motions are filed. But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides. In this 5-minute clip, Jeff Lewis and I discuss how...Read More >>

$37k in discovery sanctions appealable, but not the related issue sanctions

Last updated on March 29, 2023 by Tim Kowal
Discovery orders can sometimes be devastating. But are they appealable? Rarely. But under the appealability statute, CCP 904.1, sanctions orders greater than $5,000 are appealable. That gave the defendants in *********************************Deck v. Developers Investment Co., Inc. (D4d3 Mar. 24, 2023 No. G061287) ___ Cal.Rptr.3d ___ an idea. The defendants got hit with issue sanctions for...Read More >>

The 60-day appellate deadline runs from mailing—receipt is irrelevant

Last updated on March 22, 2023 by Tim Kowal
Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right? Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v....Read More >>

In light of split on appealability of orders on motions for good faith settlement, this appeal is dismissed as untimely

Last updated on March 20, 2023 by Tim Kowal
While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the...Read More >>

Random Violence to Appellate Procedure

Last updated on March 10, 2023 by Tim Kowal
Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this? Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random...Read More >>

Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

Last updated on March 9, 2023 by Tim Kowal
CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the...Read More >>

Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely

Last updated on February 27, 2023 by Tim Kowal
After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher...Read More >>

How to Resurrect a Dismissed Appeal Even After It’s Too Late

Last updated on February 23, 2023 by Tim Kowal
This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and...Read More >>

A piecemeal notice of judgment is not sufficient to trigger the 60-day deadline to appeal

Last updated on February 22, 2023 by Tim Kowal
So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.). On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the...Read More >>

Only in a distant parallel universe” would court strike a 15-minute late brief

Last updated on February 8, 2023 by Tim Kowal
Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd. In the District Court ruling...Read More >>

Do not wait for a cost award before appealing

Last updated on February 1, 2023 by Tim Kowal
Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later. But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023...Read More >>

Summary Judgment Not Appealed, But Reversed Anyway

Last updated on January 26, 2023 by Tim Kowal
What happens when an unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine? We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gives way. And so the plaintiff, who lost on summary judgment and forgot to appeal the...Read More >>

Vexatious Litigant Determination Is Appealable

Last updated on December 29, 2022 by Tim Kowal
The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused...Read More >>

What Starts the 60-Day Deadline to Move for Attorney Fees (or Appeal)? It Took Two Documents to Trigger in This Case

Last updated on December 8, 2022 by Tim Kowal
Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline. After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz...Read More >>

SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

Last updated on December 1, 2022 by Tim Kowal
We know that anti-SLAPP orders are appealable—it says so right in the anti-SLAPP statute. But what about orders on anti-SLAPP fees? Appealability of fee awards are not mentioned in the statute. So the courts have been all over the place, with some finding anti-SLAPP fee awards appealable, some finding them nonappealable, and some finding them...Read More >>

Disqualification motion tolls posttrial and appellate deadlines

Last updated on November 17, 2022 by Tim Kowal
Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner,...Read More >>
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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"A judge is a law student who grades his own papers."

— H.L. Mencken

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