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Dismissed Appeal

List the Wrong Order in Your Notice of Appeal? No Problem, Appellate Court Says

Tim Kowal     October 15, 2021

Filing an appeal is not hard. There is no particular form required. All that is needed is to identify the order you are appealing, and to file it before the deadline.

But as a recent case illustrates, you might not even have to identify the right order. As long as it is filed on time, the Second District held in Bennett v. Rivers (D2d3 Oct. 6, 2021) 2021 WL 4583844 (no. B301211) (nonpub. opn.), the rule of liberality is very forgiving.

The appeal in that case involved an order for prevailing party attorney fees relating to a domestic violence restraining order under Family Code section 6344. The appellant was unhappy with the order, and moved for reconsideration. The trial court denied reconsideration.

The appellant filed a notice of appeal. But in his notice of appeal, he identified the order denying his motion for reconsideration. But that is not an appealable order. It says so right in the statute. (Code Civ. Proc., § 1008, subd. (g).) The appellant did not identify any other orders in his notice of appeal. So that makes his notice of appeal fatally defective, doesn't it?

No, the notice of appeal can still be saved under the court's preference for liberal construction of notices of appeal. The appellant did eventually get around to identifying in his opening brief that he wanted to challenge the attorney fee order. And the respondent had not identified any prejudice that resulted from the defect in the notice of appeal. So "on account of our preference for appellate disposition on the merits rather than “hypertechnicality,” we will deem the appeal to have been taken from the underlying order denying the request for attorney fees. (Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210; see also Crotty v. Trader (1996) 50 Cal.App.4th 765, 768, 771 [where in pro per appellant's notice of appeal stated appeal was taken from motions heard on date of motion for reconsideration, reviewing court would liberally construe notice to find date was a mistake and deem appeal to have been taken from denial of judgment notwithstanding the verdict]; cf. Morton v. Wagner (2007) 156 Cal.App.4th 963, 967–968 [reviewing court would not consider appeal of underlying order where notice of appeal identified only denial of reconsideration; observing “[c]are must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent”].)

The respondent missed a trick here by not serving a notice of entry of the appealable order, i.e., the fee order. Recall that the appellant did not appeal the fee order. Instead, the appellant filed a motion for reconsideration and then waited for the order denying that motion before filing his notice of appeal. By that time, 113 days had passed since the entry of the appealable order. Had the respondent served a notice of entry of that order, it would have set up a 60-day deadline for the appellant to file his notice of appeal, so by the time he filed his appeal 113 days later, it would have been untimely. But because the respondent did not serve a notice of entry, the appellant had the full 180 days to take his appeal.

The order was affirmed anyway. But the respondent had to brief the merits, when she could have simply had the appeal dismissed early on. That is why it is important to spot the appealable orders early on. If you are unsure, consider consulting an appellate attorney.

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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