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Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing

Tim Kowal     September 8, 2022

So you think a timely notice of appeal is an absolute jurisdictional prerequisite? Though the description of the rule may be a slight overstatement, it is the official line, and as the published opinion in Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 confirms, the exceptions are few and, as here, difficult to establish.

But there definitely are exceptions to the “jurisdictional” rule that a timely appeal is an absolute prerequisite. The exception at issue in Garg relates to problems with electronic filing. Here is the holding:

If you attempt to timely e-file a notice of appeal, but something goes wrong, all is not lost. Here is what you do:

(1) File the notice of appeal “as soon thereafter as practicable” (in the Superior Court), and at the same time;

(2) File a motion in the Court of Appeal explaining what happened and showing good cause why the notice of appeal should be deemed filed as of the date of your timely attempt. (Rules of Ct., rule 8.77(d).)

But you must do these things immediately. The appellant in Garg waited 29 days, and that was too long. The Court of Appeal held that the appellant showed good cause for the technical foul up (the legal assistant had transmitted the notice of appeal to the e-filing vendor, but for reasons unknown, the vendor did not get it filed). But the court concluded that the appellant did not detect the error and seek relief “as soon thereafter as practicable.”

Is a Timely Notice of Appeal Really an Absolute Jurisdictional Prerequisite?

Writing for the panel, Justice Bedsworth made a few interesting observations about the official line that a timely notice of appeal is an absolute jurisdictional prerequisite.

First, Justice Bedsworth noted that “It has sometimes been suggested that “the time limit on filing a notice of appeal is only as jurisdictional as we want it to be. No constitutional provision, statute, or rule declares the limit to be jurisdictional.”” (Quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner, J.]; see also Bowles v. Russell (2008) 551 U.S. 205, 215-223 [dis. opn. of Souter, J. [criticizing 5-4 majority's use of supposed “jurisdictional” rule to unfairly disallow an untimely appeal].) What does the court make of this cynicism? Does Justice Bedsworth come to the defense of the “jurisdictional” camp? Not exactly. Here is Justice Bedsworth’s response to this criticism: “This court, of course, is bound by the majority opinion in Hollister and similar cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)” The court will enforce the rule, but the court declines to defend the butch characterization of it.

For one thing, there are several exceptions to the requirement of a timely notice of appeal. Justice Bedsworth rehearses several of them, including that untimely appeals may be excused for reasons of “ineffective assistance of counsel” in criminal and juvenile appeals (see here), or because a prison guard fails to timely remit a prisoner’s notice of appeal (Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 109), or when the clerk does not “receive” the notice of appeal until after the deadline (see here).

(Justice Bedsworth also notes that the very concept of an “exception” to a jurisdictional rule is anathema to those who regard the rule as truly jurisdictional, because a jurisdictional rule does not have exceptions: “Resistance to the notion that there are “exceptions” is perhaps attributed to an understanding that “exceptions” would undermine the concept of a mandatory, jurisdictional, and absolute rule.”)

Nor is an appeal from an appealable order even a prerequisite, as premature appeals are often “saved,” resulting in appeals decided without a valid notice of appeal ever having been filed. (See here.)

All this leads Justice Bedsworth to footnote: “Reminiscent of Voltaire's quip concerning the Holy Roman Empire, the need for a timely notice of appeal is neither “absolute,” nor “jurisdictional,” nor a “prerequisite” — at least not in areas cordoned off from the draconian features of the general rule.””

Relief is available where a notice of appeal is filed untimely due to a failure in the e-filing process.

As relevant to Garg, there are two Rules of Court that may help appellants who have failed to file a timely notice of appeal owing to problems with the e-filing system.

The narrower rule is California Rules of Court, rule 2.259(c). Rule 2.259(c) states: “If a technical problem with a court's electronic filing system prevents the court from accepting an electronic filing on a particular court day, and the electronic filer demonstrates that he or she attempted to electronically file the document on that day, the court must deem the document as filed on that day. This subdivision does not apply to the filing of a complaint or any other initial pleading in an action or proceeding.”

Here, rule 2.259(c) was not raised. But the court noted that rule 2.259(c) appears to be “merely a specific application — or slight extension — of the general rule that documents are deemed filed upon receipt…. Construed in this manner, rule 2.259(c) expands the definition of receipt to include situations in which technical problems with the court's electronic filing system prevents the clerks from accepting the document for filing.” Litigants should direct requests for relief pursuant to rule 2.259(c) to trial courts.

Rule 8.77(d) is the more expansive remedy. Rule 8.77(d) states: “If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.”

The court confirmed that rule 8.77(d) “appears to be broader than rule 2.259(c)” because it allows for relief based on a “failure at any point in the electronic transmission and receipt of a document” (not just a “technical problem with a court's electronic filing system” as under rule 2.259(c)).

But does rule 8.77(d) apply to a notice of appeal? The court finds this not completely obvious, but concludes that yes, rule 8.77(d) does apply to a notice of appeal.

To seek relief for an untimely appeal under rule 8.77(d), appellants must immediately file the notice of appeal and also file a motion for relief in the Court of Appeal.

The court then explained what to do if a failure in the electronic filing process prevents an appellate from filing the notice of appeal.

  1. File the notice of appeal “as soon thereafter as practicable.” This was the problem for the appellant in Garg. The appellant kept looking at the trial court docket, and noticed that the notice of appeal had not shown up yet, but just assumed that the clerk was backed up. Ultimately, the appellant took action to address the problem 29 days later (by that time, 15 days after the appeal cutoff). Appellant even had retained an appellate specialist, who submitted a declaration stating that docket delays of a few weeks were not uncommon in his experience. But to no avail: the court held that waiting 29 days was not “as soon thereafter as practicable.”
  2. File a motion under rule 8.77(d) in the Court of Appeal showing, by a preponderance of evidence, that the appellant’s attempt to e-file was timely. In Garg, the court concluded that the appellant had shown good cause. The appellant submitted declarations of trial counsel and counsel’s paralegal, stating that they did send out the notice of appeal for electronic filing and service. The notice of appeal was served, but only later did they realize the docket did not reflect the notice having been filed. They called the e-filing vendor, but the vendor had no record of filing.

Under the “doubtful cases doctrine,” a tie goes to the appellant.

On the evidence here, the court seemed to teeter. If there was no record of an e-filing, did the appellant establish the timely attempt by a preponderance of evidence?

Here is more good news for an appellant: On the factual question, the appellant gets the benefit of the “doubtful cases doctrine.” As the court explained:

“[C]ase law acknowledges a “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ [Citation.] ... [T]here are many cases in which this policy, implemented in accordance with ‘applicable rules,’ will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period.” (Hollister, supra, 15 Cal.3d at p. 674.) Courts have applied the “doubtful cases” rule in a variety of contexts to allow appeals to proceed when timeliness is uncertain. [Citations.]”

“The “doubtful cases” doctrine does not shift the burden of proof to the respondent or lower the burden of proof below the preponderance of the evidence standard. But it does mean appellants should not be required to resolve all ambiguities and uncertainties in the record in order to obtain relief.”

Unfortunately for the appellant here, however, the timely attempt was not enough: the appellant needed to correct the e-filing problem “as soon thereafter as practicable,” and the appellant, by waiting 29 days, did not do that.

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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