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The 60-day appellate deadline runs from mailing—receipt is irrelevant

Tim Kowal     March 22, 2023

Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right?

Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v. Wu (D4d3 Mar. 16, 2023 No. G062072) (nonpub. opn.).

They never received a notice of entry, so they appealed just under the 180-day deadline. And it was a big appeal too, over a $3.3 million default judgment.

But the plaintiffs had served a notice of entry. They mailed it to the addresses the defendants had on file. And they did so just a few days after entry of judgment, about five months before the defendants filed their appeal.

But we never got the notice of entry! said the defendants.

Nope. Receipt doesn’t matter. The 60-day clock runs upon deposit into the mail: When any party serves upon the party filing the notice of appeal a document entitled "'Notice of Entry' of judgment", the appealing party has 60 days to file a notice of appeal. (Cal. Rules of Court, rule 8.104(b).)

The rule, invoking the service provisions under Code of Civil Procedure section 1010.6 and rules 2.250-2.261, makes service effective upon deposit in the mail. "[S]ervice is complete at the time the document is deposited in the mail. [Citation.] . . . [T]he sender does not have the burden of showing the notice was actually received by the addressee." (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360; see also Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58-59 [upholding validity of notice of entry of default judgment despite failure to include floor or suite number of addressee located in "one of the largest buildings in Los Angeles"].) "[T]he risk of failure of the mail is on the addressee[.]" (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)

Doesn’t this rule invite abuse? Would it allow a prevailing party to prepare a false notice of entry and proof of service, without any recourse? The court suggests that such allegations may be given ear, but not here, because the defendants did “not claim any irregularity,” such as “fail[ing] to mail the notice,” or that the addressees were incorrect.

The Upshot:

The best practice is to assume the deadline to appeal is 60 days from entry of the judgment. You can never prove the negative proposition that a clerk or another party never deposited a notice into the mail. So the date of entry is the only date you can confirm with any certainty. Take that, add 60 days, and mark it on your calendar with a fat-tip Sharpie.

Thanks to Ben Shatz for blogging this case.

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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