When Is That Notice of Appeal Due? Hmm, Hard to Say

understand there is one thing California has in common with many jurisdictions: the rule on when notice may be given of an appeal is strict and pretty inflexible. Under California Rules of Court Rule 8.104, the Court of Appeal lacks jurisdiction to hear an appeal unless notice Usps of the appeal is filed the earlier of:

  • 60 days after the superior court clerk mails the party filing the notice of appeal either a document entitled “Notice of Entry of Judgment” or a file-stamped copy of the judgment, showing the date either was mailed; or
  • 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry of Judgment” or a file-stamped copy of the judgment, with a proof of service; or
  • 180 days after the entry of judgment.

In this era of electronic mail, what does it mean that the court clerk “mails” a document? Particularly when the court has established procedures for service through the court’s electronic filing system?

We now have conflicting answers to that question, as explained after the jump.

Last October, the First District Court of Appeal in San Francisco held that for the sixty days to start running after the court clerk “mails” a document, the court clerk must “mail” it using the United States Postal Service. There, pursuant to local rule, the clerk used the method of electronic service allowed by the trial court: an e-mail to the parties, providing them with a link to the document on LexisNexis’ electronic filing service provider web site. More than sixty days later, the appellant appealed, and the respondent moved to dismiss the appeal as untimely. The Court of Appeal denied the motion to dismiss, on the ground that “mails” means sending via the USPS, not sending an e-mailed link to a document. Citizens for Civic Accountability v. Town of Danville (2008) 167 Cal.App.4th 1158.

Now comes the Sixth Appellate District, in the heart of Silicon Valley, which rules, in Insyst, Ltd. v. Applied Materials, Inc. (January 30, 2009) ___Cal.App.4th___ (H033058) that for purposes of Rule 8.104(a), electronic service is the same thing as mail, so the clerk’s electronic transmission of a judgment starts the sixty days running. But in fact, the service system used here was similar to the one in Citizens v. Danville: the clerk served, not the document itself, but an e-mail with a link to the document on the web. Thus, the Court of Appeal ruled that, while electronic transmission of the actual file-stamped document would have started the clock running for appeal, an e-mail effectively telling the recipient where to find the file-stamped document did not do so.

Two things about this decision: it looks suspiciously like an advisory opinion, which courts are not supposed to issue. Since no file-stamped document was mailed electronically or otherwise, the Court was not required to decide whether the clock would have started running had the document been actually attached to the e-mail.

Unless and until the Cal Supremes address this issue, it could go either way (or even some other way) at a Court of Appeal. Other divisions of the First District could follow Division 5’s lead from Citizens. They could follow the Sixth District’s decision in Insys. In fact, other districts and divisions could follow either of them, or come up with answers of their own. So practitioners would best figure out the most conservative way to calendar the date for appeal, and act accordingly. Which is a good idea in general.


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