Filing the Notice of Appeal

In recent columns, I’ve discussed how trial lawyers might help appellate lawyers overturn defeats (or preserve victories) by doing certain things in the trial court — like setting up a good record for appeal.

But there’s one more task — the most important one: properly filing the notice of appeal. If you screw up this one, there is no appeal. The notice of appeal is the single piece of paper that gives the appellate court its jurisdiction to hear the appeal. No proper piece of paper, no appeal.

“But isn’t that the job of the appellate lawyer?” It can be, if you get to her in time. It is indeed better to contact an appellate lawyer right away after a significant loss in the trial court. An experienced appellate attorney will know pretty quickly whether you can appeal and how to do it.

But many trial lawyers choose to file the notice of appeal themselves. So you’d better do it right.
This can be a complicated topic, and there are good sources that discuss these complexities in detail: Eisenberg, Horvitz, & Weiner, California Practice Guide, “Civil Appeals & Writs,” Chapter 2 (Rutter Group) (on what judgments and orders are appealable) and Chapter 3 (on the notice of appeal); and “California Civil Appellate Practice” (Cont.Ed.Bar), Chapter 3 (on what judgments and orders are appealable) and Chapter 7 (on the notice of appeal). Witkin’s treatise on “California Civil Procedure” is good too, though it doesn’t include much practical advice.

This short blog post will not delve into all those twists and turns. But I can alert you to some pitfalls I’ve come across.

File on Time

First and foremost, pay attention to time.

In most cases, you must file the notice of appeal within 60 days after the date of the notice of entry of the judgment or order you are appealing from (30 days in limited jurisdiction cases). “Must” as in “the appellate court has no jurisdiction if you don’t.” And pretty much no excuses. “My dog ate my notice of appeal” won’t work.

So play it safe. Compute the 60th day and put it on your calendar. Do this conservatively.

For me, the starting date is the date of the judgment or order, not the date of notice of the judgment or order. Even though the rules set the starting date as the date of the notice, I don’t want to get involved in a dispute as to when the notice was served.

And then calendar your filing of the notice of appeal at least 10 days before that 60th day. You never know. If you wait till what you think is the 60th day to file, the clerk might tell you that you miscomputed the 60th day, or that you filled out the form incorrectly and need to go back to your office to fix it.

In fact, the safest course is to file the notice of appeal as soon as you get the judgment or order. That way, if some controversy arises about whether the judgment or order is appealable, you might have time to fix it (perhaps by filing a new notice of appeal) before the 60 days expires.

Fill Out the Form Properly

Filing the notice of appeal is pretty simple: You may (but don’t have to) use Judicial Council Form APP-002. Check the appropriate box.

It’s usually best to write in the date of the judgment or order you are appealing from — just to make clear it isn’t from some other order. Beyond that, there is no need to state the portion of the judgment or order you will challenge, your argument as to why it’s wrong, or anything else. All that will come out in the briefing to the appellate court.

Date and sign the notice. File it with the superior court clerk (usually the “appeals clerk”) — not with the Court of Appeal. The filing fee is currently $775.

Appeal From What Is Appealable

In general, you may appeal only from a judgment or a post-judgment order. You may not (with very limited exceptions) appeal from any pre-judgment order.

Recently I got a call from a trial lawyer whose appeal was dismissed by the appellate court — even though his opponent had filed no motion to dismiss the appeal. He couldn’t figure out why. I reviewed what he had filed, and found the problem. The trial court had entered an order sustaining a demurrer to the complaint without leave to amend. Then the trial court had entered judgment on the order. When the lawyer filed his notice of appeal, he checked box “judgment of dismissal after an order sustaining a demurrer.” So far, so good. This was an appealable judgment.

But then the lawyer attached to his notice of appeal a copy of the order sustaining the demurrer — without attaching the judgment.

Big mistake. No rule requires the lawyer to attach to the notice of appeal the judgment or order he was appealing from. Attaching the order sustaining the demurrer (without the judgment) led the Court of Appeal clerk to believe that he was appealing from that order, which is not appealable. So, appeal dismissed.
If the trial lawyer had filed his notice of appeal soon after the judgment was entered, he might have learned of this problem early enough to fix it — perhaps by filing a new notice of appeal, without the attachment. But by the time he got to me, the 60 days had run. So he was out of luck: no appeal.

A Trap for the Unwary: Attorney Fees

If you file a notice of appeal from a judgment, that will allow you to challenge any order that led to the judgment — such as an order overruling an objection to certain evidence, an order granting your opponent’s request for a jury instruction, or an order granting summary judgment.

But a notice of appeal from the judgment will not allow you to challenge orders issued after the judgment. The most important of these is an order awarding attorney fees. If you don’t file a separate notice of appeal from that order, the attorneys fee award will stand — even if you succeed in getting a reversal of the underlying judgment!

Another Trap for the Unwary: Pending Causes of Action

Sometimes problems with appealability arise before you file your notice of appeal. Whether a judgment is appealable might depend on how the judgment was framed.

Suppose your complaint alleges five causes of action against a single defendant. The key claim is the first one, but the trial court grants summary judgment on that one — though not on the others. You want to appeal, but the law allows you to appeal only from a “final” judgment. If the four lesser causes of action are still pending, a judgment dismissing only the first cause of action will not be final, and any appeal from that judgment will be dismissed.

The solution: Plaintiff may voluntarily dismiss the four weaker causes of action, and have the judgment show that.

Most lawyers prefer to label the dismissal “without prejudice,” thereby preserving their right to refile a new complaint later on these four causes of action — depending on how the appeal turns out. That’s OK, but it might not be worth much, because the statute of limitations will probably run on those causes by the time the appeal is resolved.

Can you solve this problem by getting the other side to stipulate that the statute of limitations on those causes will be tolled until the appeal is resolved? No. In Kurwa v. Kislinger (2013) 57 Cal.4th 1097, the court held that if you want to preserve your dismissed causes of action, you need to do it without the stipulation. Those causes need to be gone, and not revivable. Kurwa held that a dismissal without the stipulation makes them gone, because the dismissal then “includes the very real risk that an applicable statute of limitations will run before the party is in a position to renew the dismissed cause of action.” Id. at 1105-1106.

by M.A.T. Legal Director Myron Moskovitz