The absolute-no-matter-what jurisdictional deadline to appeal… and its five exceptions

Tim Kowal April 13, 2023

Everyone knows two things about the deadline to appeal:

The deadline is 60 days.
You can get an extension if certain posttrial motions are filed.

But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides.

In this 5-minute clip, Jeff Lewis and I discuss how to calculate the deadline to appeal. We also discuss that while the deadline to file an appeal is jurisdictional, and thus not subject to any equitable or discretionary exceptions, there are in fact at least five official exceptions to the jurisdictional deadline to appeal. (As well as unofficial exception that the court may simply ignore the fact that an appeal is untimely.)

The five official exceptions are:

Public emergency. (Rules 8.66, 8.104(b).)
Clerk wrongly rejects a timely notice of appeal. (Rules 8.25(b)(1), 8.100(b)(3).)
Prison-guard rule. (Rule 8.25(b)(5).)
Ineffective assistance of counsel in filing an untimely appeal (in criminal and juvenile dependency appeals). (In re A.R. (2021) 11 Cal.5th 234, 243, 276.)
Failure in the e-filing system. (Rule 8.77(d). Garg v. Garg (2022) 82 Cal.App.5th 1036, 1051.)

Watch the clip here.

This is a clip from episode 78 of the California Appellate Law Podcast. Listen to the full episode here.

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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— Rubin v. Green (1993) 4 Cal.4th 1187

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— Leviticus

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The absolute-no-matter-what jurisdictional deadline to appeal… and its five exceptions

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"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"A judge is a law student who grades his own papers." — H.L. Mencken

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)