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Notice of Appeal

Defective Notice of Appeal Held Grounds for Dismissal of Appeal in Arbitration Denial Case Involving an Elder

Tim Kowal     May 26, 2021

Appeals are rarely dismissed because of defects in the notice of appeal. But rare is not the same as never.

In prior posts (most recently here), we have discussed the liberal treatment of notices of appeal. But you are hereby warned of an important limitation to that rule, at least in appeals from orders denying petitions to compel arbitration where preference has been ordered. In such cases, the notice of appeal must state it is governed by Code of Civil Procedure section 1294, and must attach the preference order and the order being appealed.

In Avery v. All Saintsidence OPCO, LLC (D1d3 May 24, 2021) A162589, an an elderly man, appearing through a guardian, sued All Saints for elder abuse and neglect under Welfare and Institutions Code sections 15600 et seq. The elderly plaintiff had less than six months to live. The trial court granted preference under Code of Civil Procedure section 36.

All Saints petitioned to compel arbitration, but the petition was denied. The trial court noted All Saints had delayed in seeking arbitration, a delay made all the more significant given plaintiff's grim prognosis of death within six months. All Saints appealed.

The clerk took more than three weeks to file the notice of appeal. The next day, the plaintiff moved to dismiss the appeal. And the court granted it.

The Notice of Appeal of Arbitration Denials Must Comply With Special Rules in Cases Entitled to Preference:

An order denying arbitration is an appealable order under Code of Civil Procedure section 1294(a). But section 1294.4 provides for a special "limited expedited appeal process" where the appeal involves elder abuse claims where the elder has been granted preference. Specifically, the appeal must be decided no more than 100 days after the notice of appeal is filed.

Special Rules of Court, rules 8.710 through 8.717, were designed to implement this expedited appellate procedure.

Time to Appeal: Rule 8.712(b) only gives the appellant 20 days to file a notice of appeal, starting from the date a notice of entry or file-stamped copy of the order is served. (No mention is made in the rule for the deadline in cases where no notice of entry or file-stamped order is served. One wonders if the backstop 180-day deadline under rule 8.104 applies? But this seems to defy the purpose of the expedited appeal rules.)

Notice of Appeal: Rule 8.712(a) requires the notice of appeal must state that the order appealed "is governed by the rules in this chapter," and must attach copies of the order being appealed and the order granting preference. (These rules are different from the rules governing ordinary notices of appeal, which do not require anything more than identifying the appellant and the order being appealed. No authorities need be provided, and no documents need be attached.)

Record on Appeal: Clerk's transcripts are too slow. Parties often wait months before a clerk's transcript is prepared. So in appeals of arbitration denials in preference cases, this method of record preparation is not available. You must use an appendix under rule 8.124 (either joint or separate). (Rule 8.713.)

Reporter's Transcript: Normally you have 10 days to designate. Under the expedited rules, you must file your designation along with the notice of appeal. (If you fail, you get a notice of default giving you two days to get it done.) Then, the trial court will notify the court reporter. (But who knows how long this will take?) Then, the court reporter has 10 days to prepare and certify the transcript. (Rule 8.713.)

Opening Brief: Appellant's opening brief is due 10 days after the notice of appeal is filed. What happens if the transcript is not done by then? You must timely file the brief without citations to the transcript. Then, once you get the transcript, you have 10 days to file an amended brief that adds the citations. (Rule 8.715.)

The Rule of Liberal Construction of Notices of Appeal Does Not Apply:

The appellant in All Saints was unaware any of these rules applied. The appellant's notice of appeal did not state it was subject to the expedited rules, and did not attach the order granting preference. The court held this was enough to dismiss the appeal.

The appellant argued these defects were "hyper-technical" and the liberal rule of construction should save the notice of appeal. The court disagreed. "The content requirements in this rule are meant to put the parties and the reviewing court on notice that an appeal on a very expedited timeline has been filed and to facilitate the expedited appeal process." The appellant's failure to comply with them led to "a breakdown in the expedited appeal process in a case involving a plaintiff with a very poor prognosis, and substantial erosion of the 100 day period that this court has to issue a decision in this appeal."

The appellant tried to put the blame on the court clerk for waiting over three weeks to file the notice of appeal. (In this, the appellant has my sympathies. I have waited this long, and much longer, for clerks to file my notices of appeal.) But the court implies that this delay owed to the defects in the notice of appeal – the suggestion being that the filing clerks will perk up when they see the words "Appeal governed by Rules of Court rules 8.710 through 8.717," and spring into action. Perhaps this is true. I would be curious to find out.

Appeal May Have Been Dismissed for Failing to File a Timely Opening Brief:While the court dismissed on the grounds of defects in the notice of appeal, the court also noted appellant had failed to timely file its opening brief. But presumably the court did not explore this further as a ground for dismissing the appeal because rule 8.715(d) requires the appellant first be given a notice of default before dismissing an appeal on this ground.

Be Wary of Special Appellate Rules in Limited Civil Cases:

There are special rules applicable in limited civil appeals as well. (See rules 8.820 through 8.845.) This office successfully moved to dismiss a limited civil appeal recently on the grounds that, while the notice of appeal was timely filed according to the rules governing unlimited civil appeals, the times governing limited civil appeals are cut in half. Held: the appeal was dismissed as untimely.

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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