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Dismissed Appeal

Three Mistakes to Avoid in Your Notice of Appeal

Tim Kowal     March 23, 2022

The appellant in In re Marriage of Critzer (D6 Mar. 11, 2022 no. H047809) 2022 WL 736174 (nonpub. opn.) made not one, not two, but three mistakes in his notice of appeal. And he lost his appeal because of those mistakes. Here is what he did wrong:

  1. First, the appellant was appealing two things: a set of QDRO orders (qualified domestic relations order, a form of alimony), and an amended status-only judgment (just changing the date of the original status-only judgment). The QDROs were entered October 24. The amended judgment was entered October 25. But when the appellant filed his notice of appeal, he indicated the date of the order or judgment he was appealing from was October 25. So the first lesson is: mind the date of the order you are appealing from.
  2. Next, filling out the optional Judicial Council notice of appeal form, the appellant checked several boxes describing what he was appealing from. He indicated “judgment,” and also “judgment after court trial,” and also “order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13).” But the appellant did not check the boxes for an order after a judgment (Code Civ. Proc., § 904.1(a)(2)). The court held that QDRO orders are appealable as postjudgment orders.                                                                                   (Comment: But not exclusively. Several cases have held support orders are appealable under Family Code section 3554, the statute that makes family court orders appealable as in other civil actions. And thus the operative subdivision under Code of Civil Procedure section 904.1 is (a)(10), referring to orders made appealable under the Family Code. True, subdivision (a)(10) via section 3554 is a rather circuitous exercise, but then, so is the Judicial Council form notice of appeal box-checking section: the rules do not require that the notice of appeal identify the authority for taking the appeal, so the only upshot of the exercise is only to trick litigants into dismissing their appeals reading their orders out of the notice. [See prior discussion on this here, here, and here.])
  3. Third, the appellant did not identify the QDRO orders in his Civil Case Information Statement. This is the document the Court of Appeal relies upon to preliminarily determine its jurisdiction. For this purpose, appellants are required to attach the orders they are appealing. I have seen several opinions resolve dubious notices of appeal by looking to the Civil Case Information Statement. But the appellant here only attached the amended status-only judgment and not the QDROs. This was the final straw.

The lesson here: Mind the Civil Case Information Statement. If you made any omissions in the notice of appeal, this is your last and best place to correct them.

Had the appellant made fewer than all three of these errors, his appeal may have survived. The court took care to recite the policy that a notice of appeal is to be construed liberally so that appeals are not dismissed for insignificant oversights in the notice of appeal: “ ‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) [‘notice of appeal must be liberally construed’].) A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.)”

But, “[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)”

Because the appellant made all three of these errors, it evinced a “clear intention” he was not appealing from the QDRO orders.

(Note: The court also explained why the appellant’s case was not very attractive on the merits.)

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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