The basics of California Appeals — two not-so-simple rules (Part 3)

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

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By Jeffrey I. Ehrlich, 2010 | Download .doc

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How to comply with Rule 1, step 2 — Know when to file the appeal

“Normal Time” CRC Rule 8.104

Happily, once you know what you need to appeal from, figuring out when you have to file the notice of appeal is usually straightforward. The rule governing the timing of the filing of a notice of appeal in most cases is Rule 8.104 of the Rules of Court. Rule 8.104(a) is titled “normal time.” It provides that unless a statute or Rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

  1. 60 days after the Superior Court clerk serves the party filing the notice of appeal with a document titled “notice of entry” of judgment or a file-stamped copy of the judgment showing date that either was served;
  2. 60 days after the party filing the notice of appeal serves or is served by a party with a document titled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or
  3. 180 days after entry of judgment.

Remember, for the purposes of this rule the term “judgment” includes an appealable order. (Rule 8.104(f).)
The Rule defines what “entry” means. (Rule 8.104(d).) It means the date a judgment is filed under Code Civ. Proc. § 668.5 or the date it is entered in the judgment book. For an appealable order, it means the date of entry in the permanent minutes, but if the minute order directs that a written order will be prepared, then the entry date is the date that the signed order is filed. (Note — that a written order prepared as required by Rule 3.1312 [which requires the prevailing party to submit a written order within 5 days of the ruling] is not deemed an order prepared by direction of a minute order.) (Rule 8.104(d)(2.)

Court clerks are required to serve orders in certain family law and probate matters. But in most civil cases, it will be a party who serves a notice of entry. So, your time to appeal will be 60 days from service of service of the notice.

Remember: Service of a file-stamped copy has the same effect of a notice of entry — they both trigger the deadline to file a notice of appeal.

“Extended Time” CRC Rule 8.108

Rule 8.108 extends the time to appeal in five situations. By its terms, it operates only to extend the time to appeal otherwise prescribed in Rule 8.104 — it never shortens the time available to file a notice. So, if the normal time to appeal stated in Rule 8.104 is longer than the extended time allowed in Rule 8.108, then the normal time prescribed in Rule 8.104 governs. (Rule 8.108(a).)

These are the five situations governed by Rule 8.108:

  1. Motion for new trial
  2. Motion to vacate judgment
  3. Motion for JNOV
  4. Motion to reconsider an appealable order
  5. Cross appeal.

Here is how they work.

New trial motion: If a party files a valid intention to move for a new trial, the time to appeal from the judgment is extended for all parties, as follows: (1) if the motion is denied, until the earliest of (a) 30 days after the clerk mails, or a party serves, an order denying the motion or a notice of entry of the order; (b) 30 days after the motion is denied by operation of law; or (c) 180 days after entry of judgment. (2) If a party accepts a conditionally-ordered additur or remittitur, until 30 days after the date the party serves the acceptance.

Motion to vacate judgment: If within the time to appeal prescribed by Rule 8.104 to appeal from a judgment a party serves and files a valid notice of intention to move — or a valid motion — to vacate the judgment, the time to appeal is extended for all parties to the earliest of: (1) 30 days after the clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; (2) 90 days after the first notice of intention to move — or motion — is filed; (3) 180 days after entry of judgment.

Motion for JNOV: If any party serves and files a valid JNOV the time to appeal from a judgment is extended for all parties until the earliest of: (1) 30 days after the clerk mails or a party serves and order denying the motion or notice of entry of that order; (2) 30 days after denial of the motion by operation of law; or (3) 180 days after entry of judgment.

Motion to reconsider appealable order: If any party files and serves a valid motion under Code Civ. Proc. § 1008 to reconsider an appealable order, the time to appeal is extended for all parties to the earliest of: (1) 30 days after the clerk mails or a party serves and order denying the motion or notice of entry of that order; (2) 90 days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order.

Cross-Appeal: (1) If an appellant timely appeals from a judgment or an appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the Superior Court Clerk mails notice of the first appeal; (2) If an appellant timely appeals from an order granting a new trial; an order granting — within 150 days after entry of judgment — a motion to vacate the judgment, or a motion for jnov; the time for any other party to appeal from the original judgment or from an order denying a motion for jnov is extended until 20 days after the clerk mails notification of the first appeal.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

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