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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:

  1. 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.”
  2. 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.
  3. 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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