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Checking the Wrong Box on Your Notice of Appeal May Result in Dismissal

Tim Kowal     November 23, 2020

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 Though unpublished, these cases give insight into how appellate courts analyze your notices of appeal.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 form to prepare a notice of appeal. There is a box to check for "judgment of dismissal after ... demurrer." But Renfro did not check that box. Instead, he checked "Other," and explained he was appealing the "judgment on demurrer 5/23/2017," which was the date of the order sustaining the demurrer (which is nonappealable), and "relief from dismissal." Given the liberal treatment of notices of appeal, that might have been ok. The notice just has to indicate what judgment or order you are appealing. Referencing the dismissal might be close enough.

But, Renfro was not done. Although there is no requirement to attach anything to the notice of appeal, Renfro attached the order sustaining the demurrer, and did not attach the judgment of dismissal. Now Renfro has made it even less clear what he is appealing: the judgment (appealable)? Or the order sustaining the demurrer (not appealable)?

Still, I would argue that the liberality principle says that, when it is not clear which of two orders is being appealed, we ought to assume appellant means to appeal the order that may be appealed, and not the order that may not be appealed.

But, Renfro still was not done. The Fifth District out of Fresno invited Renfro to clear things up. Renfro should either explain how the court has jurisdiction to consider an appeal from a (nonappealable) order sustaining a demurrer, or, why not just file a copy of the judgment? (Hint, hint.) Taking the road less traveled, however, Renfro chose neither, and instead asked for leave to augment his notice of appeal to include the order sustaining an earlier demurrer, too.

No, said the Court, you may not augment your notice to add another (nonappealable) order.

Not finished digging, Renfro then asked, if he may not augment his notice, may he at least amend it? (I am aware of no difference between the two.)

No more hints for you, Renfro. The Court took the matter under submission. "[T]here are limits to our ability to liberally construe a notice of appeal," the Court wrote in its opinion. The Court refused to review the order sustaining the first demurrer.

Yet, the longsuffering Fifth District still considered Renfro's appeal of the judgment (though only as to the second demurrer).

Would the Court would have been justified in dismissing the entire appeal due to the defective notice of appeal? The Fifth District leaves us assuming it might be.

But the liberal construction of notices of appeal prevails in the recent personal-injury case of Morales v. Harris, G057729 (D4d3 Nov. 17, 2020). There, in completing her Judicial Council form notice of appeal, Morales checked the box for "Judgment after jury trial." So far, so good.

But, not having learned from Renfro, Morales unnecessarily attached a copy of the minute order denying her postjudgment motions. She did not attach the judgment.

Morales, again like Renfro, also gave the wrong date of the judgment in her notice of appeal. Instead, she wrote the date her postjudgment motions were denied. "If Morales only intended to appeal the JNOV ruling," the Fourth District said, "she should have checked the box" for orders under Code of Civil Procedure section 904.1(a)(3)-(13).

(Curiously, the Court also goes out of its way to instruct litigants on the proper method of appealing an order denying a motion for new trial -- that is, to "check[] the 'other' box ... and describe and specify the code section that authorizes the appeal" -- before proceeding to recite the rule that such orders are not appealable anyway, and dismissing Morales's appeal on that basis. It had not occurred to me there was a correct way to do an incorrect thing.)

Fortunately for Morales, the Court construes the appeal to be from the JNOV order (but, unfortunately for Morales, affirms on the merits).

What about Morales's appeal of the judgment? Fortunate again, the Court "conclude[s] Morales intended to appeal from the judgment as well." Although she attached the postjudgment order and not the judgment to her notice of appeal, she did attach the judgment to her civil case information statement. And because the respondent was not prejudiced or misled, liberality requires the appeal be given that effect.

But unfortunately for Morales, the deadline to appeal her judgment was May 9. Her notice of appeal was filed May 10.

Liberality may save a fairly well botched notice of appeal. But liberality will not buy even a single day's extension of the deadline to file it.

A final tip: On a recent episode of the California Appellate Law Podcast, my colleague and co-host Jeff Lewis told us he never uses the Judicial Council form notice of appeal, and instead files his notices of appeal on pleading paper. These recent cases illustrate why that may be worth considering, as appellants may get into hot water on their appeals merely by checking the wrong box.

An ever better tip: If it is time to file a notice of appeal, it is also time to contact an appellate specialist.

Tim Kowal helps trial attorneys and clients win their cases. He co-hosts the Cal. Appellate Law Podcast at http://www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at https://kowallawgroup.com/perspectives. Feel free to email 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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