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The 180-Day Deadline to Appeal Is Not Subject to Extension, Waiver, or "Fundamental Fairness"​

Tim Kowal     May 12, 2021

Appeals are dismissed on untimeliness grounds with regularity. This opinion, dismissing an untimely appeal, provides analysis that may help you avoid a similar fate. The problem, in short, is failing to appreciate that, while Rule 8.108 of the Rules of Court may extend the deadline to appeal, that rule never extends the deadline beyond 180 days from entry of the judgment. If you can remember only that, it will save you from the fate in Brownstone Lofts, LLC v. Otto Miller (D1d1 May 11, 2021) no. A160616 (non-pub.).

The trial court in Brownstone dismissed the plaintiff's complaint for failure to prosecute. The order of dismissal was January 9. A dismissal order is a final, appealable order. So January 9 was the red-letter date. The plaintiff-appellant ought to have put a big red circle around July 7, which was 180 days later – the absolute last date an appeal could have been filed. (Other factors might make the appeal deadline sooner, but never later than 180 days.)

The next day on January 10, the defendants served a Notice of Entry. The Notice of Entry made January 10 a red-letter date as well. It meant that the appellant's deadline to appeal was 60 days later. Unless it was extended. Which is what the appellants tried to do.

Here is where the appellants, presumably without the aid of appellate counsel, misstepped. On January 28, they filed a motion for reconsideration. And they assumed that motion would extend their time to appeal by 30 days after such time the motion was denied, pursuant to Rule 8.108 of the California Rules of Court.

So the appellants waited. They waited the 60 days after the Notice of Entry. But still the court kept them waiting. The too-patient appellants waited nearly 180 days. Finally, in June, the trial court put them out of their misery and denied the motion for reconsideration. And just inside 180 days after the judgment. (As discussed below, it didn't help the appellants.)

Not done waiting, however, the appellants waited still another month, and filed their notice of appeal on July 17, more than 180 days after entry of judgment.

The Notice of Appeal was Untimely Because It Was Filed More than 180 Days After Entry of the Appealable Dismissal Order:

The Court of Appeal easily concluded that the January 9 dismissal order was a final judgment. (Code Civ. Proc., § 581d; Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 741, fn. 3 [order of dismissal signed by trial court and entered by court clerk constitutes a judgment under § 581d].)

And under Rule 8.104 of the California Rules of Court, the deadline to file a notice of appeal is 180 days after entry of a final judgment.

But isn't the time to appeal extended under Rule 8.108 by filing a motion for reconsideration? Yes. It is extended 30 days after the date the motion is denied. Or 180 days after the entry of judgment. Whichever is sooner. You never get more than 180 days after entry of judgment. Sorry.

A Motion for Reconsideration Does Not Work After a Final Order:

Maybe you are thinking: If only the appellants had filed their Notice of Appeal in June, immediately after the Motion for Reconsideration was denied! Then their appeal would have been timely, right?

This may come as a surprise, but the answer is: No. In a footnote, the First District Court of Appeal notes that, once judgment is entered, the trial court loses jurisdiction to hear a motion for reconsideration. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607–1608 (Passavanti) [postjudgment motion for reconsideration is improper and will not extend the time to appeal]; Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481–1482.) Nor is an order denying a motion for reconsideration a separately appealable order. (§ 1008, subd. (g).)

That means the appellant's motion for reconsideration was not valid, and thus could not have extended the time to appeal in any event. The trial court was without jurisdiction to grant a reconsideration motion order concerning a final, appealable order. See Marshall v. Webster (Cal. Ct. App. Aug. 27, 2020) C088240, discussed previously here.

So the appellants' motion for reconsideration was a dead letter from the word go.

Which means the appellant's deadline to appeal was 60 days after the January Notice of Entry, or March. A notice of appeal in June would have been just as untimely as July.

A Motion for Reconsideration May Be Treated As a Motion for New Trial – But, Only Under Limited Circumstances:

The appellants also argued their Motion for Reconsideration, even if invalid, should not be constrained by technicalities. The trial court, the appellants argued, could have treated their motion as one for new trial.

The First District Court of Appeal did not like this much. Acknowledging that the Passavanti case (225 Cal.App.3d 1602) treated a motion for reconsideration as a motion for new trial, it also cautioned that appellate courts "should not construe a motion expressly identified as being a particular motion [in the trial court] to be an entirely different motion in the appellate court."

And besides, a new trial motion provides no better relief from the 180-day outer deadline than does a motion for reconsideration. That is to say, neither provide any relief from the 180-day outer deadline to appeal.

"Fundamental Fairness" and Waiver Mean Nothing to the Notice of Appeal Deadlines:

The appellants argued respondents waived the untimeliness of the notice of appeal by not briefing it. They also argued the appeal should proceed to the merits out of deference to "fundamental fairness."

No. The deadline to file a notice of appeal is jurisdictional. It must be dismissed even on the court's own motion, and is not a matter for discretion. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666–667.)

Final Take-Away:

If in doubt, file the notice of appeal immediately. While a premature notice of appeal can lead to complications in some cases, they are nearly always curable. Not so with an untimely notice of appeal.

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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