Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion

The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service.

So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).)

The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014) learned that lesson the hard way, but not through having its motion to vacate denied. In fact, the judge never even ruled on the motion. But the appellant suffered another consequence from filing its motion to vacate directly with the temporary judge instead of with the clerk of the superior court. Its appeal was dismissed as untimely because the improperly filed motion to vacate did not trigger the extension of time to file the notice of appeal described in rule 8.108(c), California Rules of Court.

Rule 8.108(c) extends the time to appeal whenever a party files “a valid notice of intention to move — or a valid motion — to vacate the judgment.” (Emphasis added.) The court held that the motion to vacate filed directly with the temporary judge was not valid because section 663 directs that the moving party ” shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made[.]” (Emphasis added.) Thus, the rule 8.108(c) extension was never triggered. Without that extension, the appellant’s notice of appeal was untimely.

I cannot emphasize enough how critical it is that a party file its notice of appeal on time. Gonzalez has more to say on this broader topic, which I will save for another post.