A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a jurisdictional requirement. So what happens when a lawyer who wishes to appeal from an order directing the lawyer to pay monetary sanctions files a notice of appeal listing only the lawyer’s client as the appellant? In K.J. v. Los Angeles Unified School District (Jan. 30, 2020, S241057), ___ P.3d.___, the California Supreme Court holds that such a notice of appeal is adequate to confer appellate jurisdiction where the respondent is not misled regarding the nature of the appeal: [W]hen it is clear from…
-
-
A civil case and a criminal case look the same to a mailbox
For 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…
-
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 —…
-
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…
-
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…
-
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…
-
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,…
-
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…
-
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,…
- Appellate Jurisdiction, Appellate Procedure, California Court of Appeal, California Procedure, California Supreme Court, Notice of Appeal
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…
-
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.
-
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…