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Dismissed Appeal

Wife Deemed to Appeal Because Husband Did

Tim Kowal     May 26, 2022

A default judgment was entered against husband and wife, the landlords in the landlord/tenant dispute in Phillips v. Wang (D1d2 May 25, 2022 no. A162181) 2022 WL 1658076. Husband filed a notice of appeal. But husband didn’t put his wife’s name on the notice. And wife didn’t file one of her own.

The plaintiff noted this, and moved to dismiss the appeal as to wife. Filing a notice of appeal, the plaintiff argued, is the price of admission to the Court of Appeal.

The Doctrine of Liberality in Construing a Notice of Appeal:

The Court of Appeal disagreed, citing the doctrine of liberality in interpreting a notice of appeal. "A notice of appeal must be liberally construed in favor of its sufficiency; this rule “applies to defects in the notice's designation of the parties to the appeal,” including mis-describing a party or omitting a party from the notice entirely. (Cal. Rules of Court, rule 8.100(a)(2); K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 885–886.).)”

(See prior discussion on K.J. here, here, and here.)

Also in wife’s favor: the appellate briefing identified wife as an appellant, and she signed the briefing.

Another key factor: the plaintiff-respondent was not prejudiced by including wife as an appellant. After all, she was a co-landlord, so the judgment could not very well stand against one owner and not the other. “[W]here portions of the judgment adverse to a nonappealing party are so interwoven with the whole that appeal from a part affects the other parts; in such a situation, the appellate court can reverse the entire judgment if it is necessary to do justice.” (City of Santa Maria v. Cohen (2017) 11 Cal.App.5th 96, 107.)

Any Authorized Person May Sign a Notice of Appeal on Appellant’s Behalf:

The court acknowledged the rule that “an appellant or his or her attorney” must generally sign a notice of appeal. (Cal. Rules of Court, rule 8.100(a)(1).), But this language has been construed to allow “any person, attorney or not, who is empowered to act on appellant's behalf” to sign the notice of appeal. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.) Quoting Toal v. Tardif (2009) 178 Cal.App.3d 1208, the court concluded that husband, “was authorized to act on her behalf in the absence of a clear and satisfactory showing that such authority was lacking.”

The Upshot: The doctrine of liberality is an exception to the ordinary rule that “appellate jurisdiction cannot be a matter of appellate discretion.” (Quest Internat., Inc. v. Icode Corp. (2005) 122 Cal.App.4th 745, review granted Jan. 19, 2005.) Even if you didn’t file a timely notice of appeal, as long as someone else did, you might be able to slip past the doorman.

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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