Appellate Counsellor Tips
Tips To Make Sure Your Appeal Is Timely
In both state and federal practice an appeal is taken by filing a notice of appeal with the trial court (not the appellate court). Fed. R. App. P. 3(a); Cal. R. Ct. 1(a). Here is some information to help you make sure that the notice is filed on time.
Time for Filing
In federal court the notice must be filed "within 30 days after the judgment or order appealed from is entered." Fed. R. App. P. 4(a). Note that the rule says 30 days from entry, not from service of notice of entry. While, the clerk is supposed to serve notice of entry by mail, the clerk's failure to do so does not affect the time to appeal. Fed. R. Civ. P. 77(d) (but see below with respect to relief from an untimely notice of appeal).
Upon the making of any of the following motions the time for appeal runs from entry of the order disposing of the last such motion: for judgment under Rule 50(b, to amend or make factual findings under Rule 52(b), for attorney's fees under Rule 54 if the district court extends the time to appeal, to alter or amend the judgment under rule 59, for a new trial under Rule 59, or for relief from judgment under Rule 60. Fed. R. App. P. 4(a)(4).
If a notice of appeal has been filed between the entry of a judgment and the filing of one of those motions, it does not become "effective" until after the last motion has been determined.
In state court, the notice must be filed either (a) 60 days after service of notice of entry by either the clerk or a party, or (b) 180 days after entry of judgment, whichever comes first. Cal. R. Ct. 2(a). This period is not extended for service of notice of entry by mail, overnight delivery or fax. Cal. Civ. Proc. Code sec. 1013(a),(c),(e).
The state deadline is extended by 30 days if any of the following post-trial motions are made and denied: for a new trial, for judgment notwithstanding the verdict (but only if accompanied by denial of a new trial motion), to vacate the judgment, or for reconsideration. However, the deadline cannot be so extended for more than 180 days after entry of the judgment. Cal. R. Ct. 3. The grant of any of those motions would effectively wipe out the judgment, and would itself be independently appealable. Cal. Civ. Proc. Code sec. 904.1(a)(2),(4). The denial of a motion for judgment notwithstanding the verdict is itself independently appealable. Cal. Civ. Proc. Code sec. 904.1(a)(4).
Which Piece of Paper Do You Appeal From?
The trial court may generate a number of pieces of paper in connection with the final resolution of the case, but it is only the "final" paper that triggers the running of the time to appeal. For example, an order granting a motion to dismiss or sustaining a demurrer is normally merely preliminary to a later judgment of dismissal. The dismissal is the appealable piece of paper.
In federal practice the court must set forth every "judgment" on a "separate document". Fed. R. Civ. P. 58. Hence, even if the trial court's memorandum decision recites that an action is "dismissed," the time to appeal does not start to run until a separate "judgment" is entered. See McCalden v. California Library Ass'n, 955 F.2d 1214 (9th Cir.), cert. denied, 112 S. Ct. 2306 (1992). However, the "separate document" requirement is waivable, and an aggrieved party may appeal from a final order even if a separate judgment has not been entered. Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). Further, if a notice of appeal is filed before a final order is entered, it "is treated as filed on the date of and after the entry." Fed. R. App. P. 4(a)(2).
There is no state equivalent of the federal "separate document" rule to help identify the appropriate piece of paper. While an appeal may only be taken from a "judgment" (Cal. Civ. Proc. Code sec. 904.1(a)(1)), all "dismissals ordered by the court" are considered judgments (Cal. Civ. Proc. Code sec. 581d). An order that simply sustains a demurrer is not a judgment, but if the word "dismiss" appears in the order it may well be a judgment. See Dollar-A-Day Rent-A-Car Sys., Inc. v. Pacific Tel. & Tel. Co., 26 Cal. App. 3d 454, 102 Cal. Rptr. 651 (1972).
In light of the potential for uncertainty in state practice, one should normally treat as appealable the earliest piece of paper that could even arguably be considered a dismissal. The Rules of Court provide that "[a] notice of appeal filed prior to rendition of the judgment, but after the judge has announced his intended ruling, may, in the discretion of the reviewing court for good cause, be treated as filed immediately after entry of the judgment." Cal. R. Ct. 2(c).
Where a notice of appeal was filed prematurely but no "judgment" had thereafter been entered, it had been the practice of the courts of appeal to "save" the appeal by construing the order to include a dismissal. See Avila v. Standard Oil Co., 167 Cal. App. 3d 441, 213 Cal. Rptr. 314 (1985). In a recent wave of decisions various courts of appeal have repudiated that procedure and announced that they will henceforth dismiss all premature appeals where no judgment has been entered.
Relief from an Untimely Notice of Appeal
In state practice the deadline for filing a notice of appeal is "mandatory" and the court of appeal is "without jurisdiction" to proceed if the notice of appeal is untimely. Hollister Convalescent Hosp., Inc. v. Rico, 15 Cal. 3d 660, 542 P.2d 1349, 125 Cal. Rptr. 757 (1975); see also Cal. R. Ct. 45(c),(e).
However, under Federal Rule of Appellate Procedure 4(a)(5) the district court may extend the time for filing upon a showing of excusable neglect or good cause provided that an appropriate motion is filed not later than 30 days after the deadline.
If a party does not in fact receive notice of entry of the judgment within 30 days of the entry, the district court may reopen the time for filing a notice of appeal provided that an appropriate motion is filed within 7 days of receipt of the notice of entry or within 180 days of entry of judgment, whichever is earlier. Fed. R. App. P. 4(a)(6).