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Notice of Appeal Defective? All Is Not Lost (Maybe)

Tim Kowal     December 22, 2020

Take care in drafting your notice of appeal, but if you notice you have made an error, all is not lost. The California Supreme Court's January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 will guide you through your effort to save a malformed notice of appeal.

In that case, attorney was sanctioned, and filed a notice of appeal of the sanctions order. But the notice of appeal named only the client as the party appealing, not the attorney.

Held: No matter, the appeal was saved because under the circumstances, including the facts that client had not been sanctioned and that respondent could not possibly have been misled, it was the attorney who intended to appeal. The omission, due solely to inadvertence, could not defeat the policy of liberality in construing notices of appeal.

The Supreme Court reversed the Second Appellate District, which had held that, even under the liberal policy concerning notices of appeal, such a notice could not be "stretch[ed] ... so far as to deem a notice of appeal to include an unnamed party." The high Court found indeed it could stretch that far, so long as the intent was clear and the respondent was not misled.

The Court also confirmed that while errors in the timing of a notice of appeal are fatal, the same is not true concerning errors in the contents of the notice.

The Court also includes a good survey of the authorities concerning how to construe notices of appeal, including premature appeals from interlocutory rulings, where courts have "admoni[shed] .. .members of the bar ... to cease appealing from ... obviously nonappealable order[s]." Admonish away, says the Court, but that doesn't mean the appeal can't be considered.

The Court disapproves Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39 and other cases that suggest an attorney’s name must appear in the notice of appeal to preserve the attorneys' right to challenge a sanctions order.

[ Tags: Notice of Appeal, Supreme Court ]

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

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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