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Dismissed Appeal

Checking the Wrong Box on Notice of Appeal Is Not Fatal (But Why Risk It?)

Tim Kowal     October 13, 2021

I have written before that checking the wrong box on the Judicial Council form notice of appeal likely will not doom your appeal. But I have also written that, if you continue using the Judicial Council form, you are likely to continue giving your adversary — and the courts — cause to question the sufficiency of your notice of appeal. (This is something attorneys do not like having to explain to their clients.) Both of these points are confirmed in *Fang v. Shao* (D4d2 Oct. 8, 2021) 2021 WL 4704892 (no. E073065) (nonpub. opn.). The appellant appealed from a judgment, but checked the box saying she was appealing from an order after a judgment, rather than the judgment itself. The respondent pounced on the technical defect.

When it comes to appellate jurisdiction, technical defects can be the best kind of defects. At a minimum, the Fourth District Court of Appeal here acknowledged it was "dutybound" to take it seriously, whether addressed by the parties or not. (Olson v. Cory (1983) 35 Cal.3d 390, 398 [“[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion.”].) ‘ “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75.)

Fortunately for the appellant, however, the court concluded the respondent could not reasonably have been confused by the technical defect in the notice of appeal. The appellant did check the wrong box on the form notice of appeal, stating she was appealing from “An order after judgment under Code of Civil Procedure section 904.1(a)(2).” But she did identify the correct date of the judgment, and there was no other docket entry on that date. The respondent could not possibly have been misled. So the notice of appeal was sufficient. A notice of appeal shall be ‘ “liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” ’ ” (In re J.F., at pp. 75-76.)

Bookmark this authority in case you run up against a wrong-box-checked problem in one of your appeals:

“Consequently, the notice of appeal was sufficient even if the wrong box was checked to identify the particular subdivision of Code of Civil Procedure section 904.1 that authorizes this appeal.” (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251 [notice of appeal adequate to appeal order awarding attorney fees, despite appellant's error in checking box for other types of postjudgment orders because “the notice of appeal clearly indicated the subject of the appeal was the order entered on September 10, 2012, which can only refer to the order granting attorney fees”].)

Comment: Consider discontinue using the Judicial Council form Notice of Appeal. Yes, the rule of liberality requires the courts to construe your notice of appeal broadly. But the Judicial Council form invites you to give the courts reason to construe it narrowly. (The rule of liberality does not apply if there is evidence of a different intent on the part of the appellant.) The additional information the form calls for is entirely unnecessary, as I have explained previously here and here. It is an optional form, not a mandatory form. And I am aware of no upside in the option.

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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