How to Resurrect a Dismissed Appeal Even After It’s Too Late

Tim Kowal February 23, 2023

This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and transfer the case back.

In Sidney, the appellant’s opening brief got kicked for defects, and the appellant failed to refile on time. So the court dismissed the appeal. The court can vacate a dismissal and reinstate the appeal, but only so long as it retains jurisdiction. After 30 days, the Court of Appeal loses jurisdiction. Here, the docket indicates the motion was filed "[o]n November 15, 2022, at 12:52 a.m., a day after this court's jurisdiction ended."

But even though it no longer had jurisdiction, the court still did the appellant a favor. Division 2 asked the Supreme Court to grant review on its own motion and transfer the case back, "to allow this court to act on appellant's motion."

And the Supreme Court obliged.

Thanks to David Ettinger for this tip.

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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How to Resurrect a Dismissed Appeal Even After It’s Too Late

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

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"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

"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.)

"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

"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

"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