Perfecting the Appeal: Appealability and Timeliness

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from...Read More >>

What's the worst can happen by taking an appeal too early? I am asked this often (and I've discussed related topics here and here), and the California Supreme Court case of Kurwa v. Kislinger (2017) 4 Cal.5th 109 always comes to mind. The worst that can happen? Five years of litigation, four trips to the Court of Appeal, two trips to...Read More >>

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate. As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will....Read More >>

... not when the clerk happens to get around to filing it. In recent months – even before Covid, but even more since – I have seen clerks failing to promptly process filings. You have probably noticed it, too. Depending on the filing, this may create problems. For a notice of appeal, which has jurisdictional consequences, the date...Read More >>

The California Supreme Court in In re A.R. (Apr. 5, 2021) no. S260928 held that failing to file a timely notice of appeal is not necessarily fatal in a dependency case. This is a surprising holding because, as most practitioners know, reviewing courts treat appellate deadlines as jurisdictional in nature: a hard limit on the court's very authority to act,...Read More >>

In this wage-and-hour action in Zhang v. Shao (D4d3 Apr. 1, 2021) no. G058045, the defendant employer made a number of procedural missteps, resulting in plaintiffs' obtaining summary judgment. (Technically, summary adjudication, followed by plaintiffs' voluntary dismissal of their remaining claims.) Before appealing, employers tried to undo the damage in the trial court. But they bungled that,...Read More >>

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...Read More >>

Settlements of litigation sometimes involve a provision to enter a stipulated judgment in the event the defendant fails to perform. A judgment entered upon stipulation typically is not subject to challenge on appeal, as the stipulation means the appellant is not "aggrieved," and thus lacks standing. That was not the case in Park Lane Assocs., LP...Read More >>

We recently discussed strategic dismissals following devastating, but nonappealable, interlocutory orders in order to expedite an appeal in California state court. (The dismissal has to be with prejudice, however: don't get into a Kurwa v. Kislinger snafu.) But beware if you are in federal court: A recent Ninth Circuit decision in Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec....Read More >>

Approaching the 60-day deadline to appeal the trial court's dismissal of her action, plaintiff filed a notice of appeal. But the Court of Appeal in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (unpublished), dismissed her appeal. Why? Because the dismissal was not signed, as required under Code of Civil Procedure section 581d, and thus not appealable....Read More >>

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then? An order denying leave to amend is not directly appealable. So that's out. You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it...Read More >>

An order granting terminating sanctions may seem like the end of the world. It isn't. The judgment on the order granting terminating sanctions is the end of the world. Then, and only then, may you appeal. In the employment dispute involved in Chung & Assocs. v. Mendoza (D2d1 Feb. 18, 2021) No. B297304 (unpublished), employer plaintiff sued...Read More >>

Here is a common question: A judgment is entered. Later, a separate award of attorney fees and costs is entered. Still later, an amended judgment incorporating the fee and cost award is entered. To seek reversal of the fee and cost award, which order, or orders, must be appealed? Answer: All three. "'When a party...Read More >>

This appeal over attorney fees concerns thorny issues of appealability. In Doe v. Westmont Coll. (D2d6 Jan. 25, 2021) No. B303208, the Second District rejected the college's arguments that the fee order was not appealable. Even though the fee motion had been made and denied previously, the court noted the second fee motion raised new issues, including...Read More >>

This recent opinion discusses two appeals, both of them dismissed on procedural grounds. The first appeal was dismissed as moot because the appellant failed to obtain a stay of the order on appeal. The second was dismissed as premature because the appellant filed the appeal too early. Both of these kinds of errors are what...Read More >>

In this commercial eviction case in Lee v. Kotyluk (D4d3 Jan. 7, 2021) No. G058631, defendant-tenant filed a motion in limine for judgment on the pleadings, asserting a defect in landlord's three-day notice to quit. The trial court granted the motion and entered judgment for the tenant. Plaintiff-landlord appealed the judgment. The prevailing defendant-tenant then obtained an...Read More >>

Most attorneys will, at some point or another in their careers, find they have failed to make a court appearance. When that happens, an order to show cause (OSC) will issued requiring the attorney to explain to the court what happened. Hopefully, the attorney can give a good reason for the absence and avoid sanctions....Read More >>

Take care in drafting your notice of appeal, but if you notice you have made an error, all is not lost. The California Supreme Court's January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 will guide you through your effort to save a malformed notice of appeal. In that...Read More >>

Two recent cases caution litigants to take special care when preparing a notice of appeal. Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal. When the trial court sustained two demurrers to his complaint, the plaintiff in Renfro v. Kai-Lieh Chen, F076083 (D5 Apr. 6, 2020), used the Judicial Council...Read More >>

In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in arbitration. So plaintiff went back to trial court and filed a "motion to restore" the case to the civil active list, which the trial court...Read More >>

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. You may subscribe by clicking here. Beware Appealing Questions of Law on a Preliminary Injunction: Does New Jersey's ban on large capacity magazines violate the Second Amendment?Third Circuit: We already decided that it does not when we denied the plaintiffs'...Read More >>

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here. This episode of California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision. Listen here. Appellate Specialist Jeff Lewis' biography...Read More >>