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

Tim Kowal April 26, 2023

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 (nonpub. opn.), the judgment of dismissal following demurrer was stamped and attached with a proof of service. But McKenzie waited more than 60 days to appeal. That was too late.

But wait! McKenzie urged that the judgment and certificate of service were defective and so could not trigger the 60-day deadline (meaning her deadline was 180 days). McKenzie raised three alleged defects with the triggering document:

The certificate of mailing it did not bear a printed name, just an “illegible scribble,” and thus did not comply with Code of Civil Procedure section 1013(a)(4). But there is no subparagraph (4). Or anything else that requires the signature be legible. And, besides, the signature was legible—it says “Delia Nunez.”
Yes, the judgment is file-stamped, but the stamp is not signed. Sorry, there is no requirement that the stamp be signed. The judgment must be signed, and here it was.
The certificate of mailing only says the proposed judgment was served, not the judgment. Good argument, except wrong—the certificate does say “judgment.” Not “proposed.”

A valiant effort. And in point of fact, there are often problems with the rule 8.104(a)(1)(A)-(B) signed file-endorsed copy showing the date of service. A lot of requirements need to be met: (1) signed, (2) stamped, (3) proof of service, and (4) contained all in a single document. Miss any one of these and you have a good argument that the 60-day deadline has not been triggered. (This is why a Notice of Entry is a far cleaner triggering document.)

But the document here checked all the boxes. Untimely appeal dismissed.

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

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"A judge is a law student who grades his own papers." — H.L. Mencken

"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

"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

"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

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.)

"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

"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