A civil case and a criminal case look the same to a mailbox

Prison CellFor an appellant whose mail slot looks like the one pictured, there was an important decision yesterday.

The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case.

Silverbrand’s medical malpractice action against the county and jail medical personnel had been decided against him by summary judgment. He filed his notice of appeal by handing a correctly addressed, postage-paid envelope to prison officials the day before his deadline to file, but it did not reach the court until 2 days after the deadline. The court of appeal dismissed the appeal.

Here’s how the court introduced its decision reversing the court of appeal:

The prison-delivery rule — as most recently articulated by this court — provides that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.  (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner’s filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, “ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.” (Jordan, supra, 4 Cal.4th at p. 119.)  It also “furthers the efficient use of judicial resources by establishing a ‘bright-line’ test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner’s notice of appeal was delivered to prison authorities ‘sufficiently in advance of the filing deadline’ to permit the timely filing of the notice in the county clerk’s office.”  (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.  Self-represented prisoners — who can file a notice of appeal only by delivering it to prison authorities for mailing — should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.  Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.  Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

That all seems rather obvious, doesn’t it? But it wasn’t obvious at all from the relevant rules of court, as the rule for criminal appeals (rule 8.308) codifies (at subsection (e)) the prison-delivery rule, while the rule for civil appeals (rule 8.104) does not. That kind of distinction usually leads a court to infer that the drafter deliberately made the rules different, and that’s exactly what the court of appeal understandably concluded in dismissing Silverbrand’s appeal.

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief. Orange county DUI defense lawyer will successfully handle such a case.

But here, the Supremes note a tension between the unforgiving jurisdiction nature of the deadline and a policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Citation omitted.) This policy led to the development of the prison-delivery rule in the first place. Recapping that history and noting a national trend toward application of the prison-delivery rule in civil cases, the court reaches the conclusion summarized in the block quote above: there is no good reason to treat civil appeals different from criminal appeals.

The court overcomes the literal and harsh application of the court rule by noting that the rationale of the prison-delivery is not that it extends the deadline for filing to the date the notice of appeal is actually received by the court, but rather because the rule deems the notice of appeal constructively filed on the date of delivery to prison officials for mailing, despite the fact that it does not reach the court until later. I thought the opinion did some somersaults in its analysis of the rules, but was convinced nonetheless.

Please note, all you civil litigants, even self-represented ones, this does not mean your deposit in a mailbox on the last day for filing will suffice.  Remember, the court was deciding the effect of a prison-delivery rule.  If your mailbox doesn’t resemble the one pictured, you need to get your notice of appeal to the court — not the mailbox — on time.

It’s also worth noting that Silverbrand had the benefit of top-notch counsel in the Supreme Court at a bargain price (as in “free”). The Supremes appointed appellate powerhouse Horvitz & Levy to represent Silverbrand, and he had three amicus briefs filed on his behalf.

UPDATE: Thanks to Horvitz & Levy for linking to this post from their website “bragging page” about the case.

(Photo courtesy of Andrew Bardwell pursuant to Creative Commons Attribution-Share Alike 2.0 Generic License.)

Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?

Certainly not Division Three of the Fourth District Court of Appeal.  In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading.

Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings.  The trial court denied the writ.  Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment — just one day prior to the jurisdictional deadline of 60 days following mailing of notice of entry of judgment.  (See rule 8.104(a)(2), Cal. Rules of Court)  Angus filed its notice of appeal from the same judgment two days later — 61 days following mailing of notice of entry of judgment.  Respondent Hunt Petroleum (AEC), Inc., joined by respondent Director of Conservation Bridgett Luther, moved to dismiss Angus’s appeal on the basis that it was untimely filed.

The applicable rule** states: “If an appellant timely appeals from a judgment or 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 notification of the first appeal.” (** The court decided the case on the basis of former rule 8.104(e)(1) as in effect at the time the appeals were taken, but the wording of current rule 8.108(f)(1) is identical, as is the “Cross-appeal” heading noted by the court, and thus the result should be the same under the current rule.)

Respondents contended the rule applies only to cross-appeals and to parties adverse to the first appellant, but simple statutory definitions allowed the court to make short shrift of those arguments:

Hunt contends that California Rules of Court, rule 8.108(e)(1) is inapplicable, for two reasons. First, Hunt says the rule applies only to cross-appeals and Angus did not file a cross-appeal. Second, Hunt asserts that the rule applies only when the party seeking to utilize the 20-day extension period is adverse to the first party to file an appeal. We disagree.

Although the topic heading to California Rules of Court, rule 8.108(e) reads “Cross-appeal,” as Angus points out, “[b]y definition, a cross-appeal is any appeal filed after the first appeal [citation], and [the] rule . . . does not differentiate between cross-appeals which are protective and those which are independent.” (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1297- 1298, fn. omitted.) Moreover, “[t]he usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.]” (Id. at p. 1296.) “‘“When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” [Citation.]’ [Citation.] Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. [Citation.]” (Ibid.) Here, the text of rule 8.108(e)(1) contains no limitation of the type asserted by Hunt. It requires neither that an appeal be denominated a “cross-appeal” nor that the second party to file an appeal be adverse to the first party to do so, in order for the 20-day extension period to apply.

In this case, Termo filed a timely appeal from a judgment and an order and, two days thereafter, Angus filed an appeal from the same judgment and order. The appeal of Angus is timely filed under California Rules of Court, rule 8.108(e)(1). The motion to dismiss is denied.

Appellate practitioners already know not to turn away a client just because more than 60 days have elapsed since the notice of entry of judgment was mailed and the client has not yet appealed, because post-trial motions can extend the time to appeal.  (See rule 8.208(b)-(e).)  Make sure you don’t overlook this interpretation of rule 8.108(f)(1), either.

My thanks to Long Beach business litigator Charles Hokanson, who alerted me to this important case, knowing that I was on hiatus when it was published.  Nice to know at least one of you guys is looking out for me!

There’s No “E” Before “Mails” When it Comes to Triggering the Deadline to Appeal


Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment.

The trial court designated the case complex litigation and ordered compliance with the court’s Electronic Case Filing Standing Order, which provided that orders filed by the court would be served electronically only, either by e-mail or through an electronic filing service provider (in this case, LexisNexis File & Serve). The order granting in part and denying in part the petition for writ of mandate was served as follows:

On April 1, 2008, LexisNexis File & Serve sent the parties a message by electronic transmission (an e-mail) stating, “You are being served documents that have been electronically submitted in [Citizens for Public Accountability v. Town of Danville] through LexisNexis File & Serve.” The e-mail identified the document as a Judgment on Petition for Writ of Mandate, and stated that it had been authorized for filing on April 1, 2008. To view the document, the parties had to visit a LexisNexis File & Serve website, sign in, and open a document file. The document so accessed bore an “electronically filed” file stamp dated April 1, 2008.

Respondents moved to dismiss the appeal on the ground that the notice of appeal was filed more than 60 days after that electronic service. The court of appeal denies he motion, holding that “the 60-day appeal period in California Rules of Court, rule 8.104(a)(1) is triggered only by the mailing of a judgment by the US Postal Service.” (Emphasis added.) Keys to this conclusion: resolution of ambiguities in the rules should be construed to preserve the right to appeal, statutory distinctions between mailing and other forms of service indicate that “mail” means the U.S. Postal Service.

Everyone Got It Wrong on the Deadline to Appeal

It is a critical question, and one that can occasionally confound: what is the deadline to appeal? 

In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order.  The district court denied the motion, but granted a 10-day extension of time to appeal.  After plaintiff appealed, defendants cross-appealed the order granting the extension.

Clearly, all of the parties and the district court thought that the extension was necessary.

It wasn’t! Plaintiff’s appeal was timely even without the extension, and the Ninth therefore dismisses the cross-appeal as moot.

Determining the deadline to appeal is the very first thing I do when talking to a client — even before I determine whether the order is appealable — because the consequences of missing it are so severe.  This is especially important in California state court, where the deadline is jurisdictional.  This is why readers who click on the “Need a Lawyer on Appeal?” link at the top right of this blog are directed to a page with big, bold, capital, red letters near the top telling them to “act fast!”

UPDATE (7/1/08): As if to prove my point, the Third District Court of Appeal dismissed an appeal yesterday because the notice of appeal was untimely.  See California Appellate Law for details.

Red Light for Jurisdiction

Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them.

This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply for fees and costs. The owners appealed from the permanent injunction, and while the appeal was pending, the People moved for and were awarded fees and costs. The court ordered an “amended judgment” that not only added the award for fees and costs, but

apparently changes some of the language in the prior judgment. The amended judgment appears to contain substantive changes beyond the insertion of the amounts awarded for attorney fees, investigative costs and court costs. For example, the amended judgment purports to add language that “[a]ny future costs relating to enforcement and/or modification of the [j]udgment shall also be recoverable by [respondent] in a sum according to proof.”

The owners filed an “amended notice of appeal” from the “amended judgment,” which the court liberally construed as a notice of appeal from the order awarding fees and costs.

Now, there’s no question the court had power to entertain and rule on the motion for fees. The other amendments to the judgment? Well, not so much:

The trial court acted in excess of its subject matter jurisdiction by entering an amended judgment modifying the terms of the permanent injunction after a notice of appeal had been filed. In Holtum v. Grief (1904) 144 Cal. 521, 524-525, overruled on another point in Phelan v. Superior Court (1950) 35 Cal.2d 363, 371, our Supreme Court said: “The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely or by inadvertence, they may be set aside on a proper showing [citation], and if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth [citation], but subject to these exceptions the order is reviewable only on appeal, and the decision of the trial court having been once made after regular submission of the motion its power is exhausted–it is functus officio. [Citations.]” (Accord, Fallon v. Superior Court (1939) 33 Cal.App.2d 48, 52-53; see also Stevens v. Superior Court (1936) 7 Cal.2d 110, 113-114; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185.)

One thing I like about this case is that it invokes a 104-years-old case without a hint of self-consciousness — and the quotation from that case invokes earlier, but undisclosed, authorities. Sometimes, an old case is the only one — or at least the best one — you’ve got. So long as it’s still good law, use it.

1/26/17 update: on the subject of citing to old Supreme Court cases, see this post.

Order or Judgment? It can make a big difference!

More wrangling over what triggers a deadline to appeal.

Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal.  In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post.

Though the original opinion refers to an August 7, 2006 “notice of entry of the order” denying the appellant’s new trial motion, the modified opinion refers to a document of the same date titled “Ruling on Submitted Matter,” apparently the same document.  The generic reference has some significance in the context of the new argument that the court quickly disposes of.

Appellant claimed that the “Ruling on Submitted Matter” was not a notice of entry of order within the meaning of rule 8.108(b)(1)(A), California Rules of Court (extending the time to appeal to 30 days after notice of entry of order denying new trial) because it was not titled “Notice of Entry of Order” and was not file-stamped with the date of entry.

The court notes, however, that the words “Notice of Entry of Order” appear at page 6 of the document.  That’s enough.  But is that necessary?  Rule 8.108(b)(1)(A) triggers the deadline for appealing from the service of “an order denying the motion or a notice of entry of that order.”  It’s hard to say exactly what this document was comprised of, but I’m guessing that the “Ruling on Submitted Matter” was not the order itself, but a document with the order attached. If it were simply the order itself, it seems the court could have found it sufficient to trigger the appeal deadline regardless of the presence of the words “notice of entry.”

As for the missing file stamp, the court notes that while a file-stamp must appear on any copy of the judgment served in lieu of a notice of entry of judgment (rule 8.104(a)(1)), there is no such requirement under rule 8.108 for notice of entry or a copy of the order denying a new trial.

Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal

It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys.

Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal.

Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of judgment to file his notice of appeal (rather than the shorter period of 30 days from notice of entry). (Cal. Rules of Court, rule 8.108(a).) The court finds, however, that as long as one of Adaimy’s attorneys received notice, it was effective notice and due process was satisfied. Adaimy thus had only 30 days to file his notice of appeal. Since he filed it on the 31st day, his appeal is dismissed for lack of jurisdiction.

A costly lesson in the jurisdictional nature of the notice of appeal.

FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal

Sometimes, the rules seem rather tangled.  But go through them slowly, and they usually  all “come together.”

Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely.  The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order.  The issue thus became when the 30-day deadline for filing the notice of appeal was triggered.

The analysis is rather straightforward.

The date of entry of a judgment triggers a 30-day deadline to appeal from it.  (Fed. R. App. P. (“FRAP”) 4(a)(1).)  For this purpose, the date of entry is defined by FRAP 4(a)(7), which sets forth two different standards depending on whether the judgment or order requires a separate document under the Federal Rules of Civil Procedure:

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

So, determining the deadline for the notice of appeal from any given judgment involves two steps once the judgment is identified: (1) determine when — according to the definition of “entry” in FRAP 4(a)(7) — the judgment was entered for purposes of FRAP 4(a); and (2) add thirty days.  Simple, right?

The appellees in Menkem didn’t think so.  The order appealed from in that case fell under FRAP 4(a)(7)(A)(ii) because it required a separate document, which was never filed.  The court makes quick work of the appellees’ argument that FRAP 4(a)(7) sets the deadline for filing the notice of appeal:

[Appellees argue] that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired.  [Appellant] correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.

[Appellant] filed his notice of appeal on July 22, which is 176 days from the entry of the January 27, Order.  [Appellant’s] notice of appeal is therefore timely.

It’s surprising appellees would want to get started on the wrong foot with this argument.  As the court notes, the result is evident from the plain language of the rule.

Turning to the merits of the appeal, the Ninth applies a straightforward personal jurisdiction analysis and reverses the district court’s order dismissing the case for lack of personal jurisdiction.  Professor Martin at California Appellate Report calls this a “wonderful” opinion for schooling students on personal jurisdiction.  He also evaluates Judge Bybee’s concurring opinion, which advocates an abbreviated test for personal jurisdiction.  He gives high praise to Judge Bybee for his willingness to buck doctrine and think outside the box but finds his argument unpersuasive.

Will the Supreme Court Revisit Clemmer v. Hartford Insurance Company?

Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.  In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal.  Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 154, p. 220.

Nearly thirty years of disrespect for Clemmer so far hasn’t been reason enough for the Supreme Court to revisit the issue, but the Second District Court of Appeal, Division Seven, may have just forced the Supreme Court’s hand by going out of its way to actually follow Clemmer in City of Los Angeles v. Glair, case no. B190031 (July 25, 2007), dismissing an appeal because the order denying a statutory motion to vacate is not appealable.

There’s more to this case.  Though the Court of Appeal dismissed, it didn’t do so before first trying every which way to find jurisdiction, including a generous characterization of the appellant’s post-trial motion as a motion to vacate.

First, the procedural facts . . .
Read More »

Another Premature Appeal Saved — Should it Be?

The Appellate Practitioner brings to our attention the Sixth District Court of Appeal’s decision in Sisemore v. Master Financial, Inc., case no. H029138 (June 12, 2007), in which the court “saves” a premature appeal. Sisemore appealed from an order sustaining a demurrer to her complaint without leave to amend. The court saves the premature appeal by construing the order to incorporate a judgment of dismissal. This is an accepted practice.

Might this practice be challenged someday? It wouldn’t be the first time the California Supreme Court has been called upon to review the appropriateness of “saving” an appeal.
Read More »

California Notice of Appeal May be Filed on Behalf of Trust by Non-Attorney Trustee

The Second District of the California Court of Appeal holds that a trustee may sign and file a notice of appeal on behalf of the trust even though the trustee may not represent the trust in court.  Indyway Investment v. Cooper, case no. B192944 (April 24, 2007).  The opinion first explains the rationale for why a trust may not appear in propria persona by a non-attorney trustee, then provides a range of  decisions in which notices of appeal were filed by non-attorney representatives and found valid based on a recognized “distinction between the capacity of a person acting in propria persona to sign and file a notice of appeal and his capacity to execute and file pleadings, papers, and briefs in both the trial and appellate courts.”  It is an excellent starting point for research by any attorney considering challenging the validity of a notice of appeal on the basis that it was filed by an unauthorized person and by any attorney assuming representation of an appellant after such a notice has been filed.

Technorati Tags: ,