Appellate Corner: Avoiding the Malpractice Trap of Appellate Deadlines During the COVID-19 Pandemic

By John T. Sylvester, Esq.
Law Offices of David C. Beavans, APC

Introduction

As this year’s unprecedented COVID-19 pandemic unfolds, civil trial attorneys are understandably preoccupied with a number of complex issues related to keeping their practice afloat and their client’s cases on track. At the forefront of each practitioner’s mind is how they will make payroll and how far out their trials will be continued. During this difficult time, trial attorneys must be careful not to overlook a potential malpractice trap that has presented itself: the deadline to file a client’s notice of appeal. This article will review the standard appellate filing deadlines, the extension of these deadlines due to COVID-19, and how to avoid the potential malpractice issues related thereto.

Appellate Filing Deadlines

In most civil appeals, there are three possible deadlines to file a notice of appeal of a judgment or final order. [1] If more than one deadline exists, the earliest-in-time governs.[2] For brevity’s sake, this article does not discuss the less common statutory exceptions to these deadlines, or the extent to which the filing of post-judgment motions extends this deadline.

First, the usual deadline for filing a notice of appeal is 60 days after the appealing party serves or is served by a party with notice of entry of the judgment or order appealed from.[3] This is the most commonly applicable deadline in civil cases because the party submitting an order or judgment for entry is required to serve notice of such entry on all parties—thereby triggering the 60-day countdown.[4]

Second, the deadline to file a notice of appeal is also 60 days after the superior court clerk serves the appealing party with notice of entry of the judgment or order appealed from.[5] This is most common in family law appeals where the clerk, rather than the party, is obligated to serve the notice of entry of judgment.[6] However, the first deadline may still apply in a family law appeal where the trial court expressly instructs a party to prepare and serve a written order after hearing.[7]

Third, in the absence of service of the order by either party or the court, the outside deadline to file an appeal is 180 days after entry of the judgment or appealable order.[8] This is most common where—due to mistake, confusion, or neglect—neither the clerk nor a party serves notice of entry of the judgment or order appealed from.

The date of “entry” which triggers the 180 day deadline depends on whether the appeal is taken from a judgment or a final order. For judgments, the judgment is “entered” for appeal purposes on the date the judgment is filed with the court.[9] For orders, the date of entry for appeal purposes depends on whether the order is in the court’s minutes and, if so, whether the trial court expressly instructed a party to prepare a formal written order. If the order is not entered in the minutes, it is “entered” for appeal purposes on the date a signed written order is filed.[10] If the order is entered in the minutes and the minute order does not require a party to prepare a separate written order, the order is “entered” on the date the minutes were entered.[11] And if the order is entered in the minutes and the minute order expressly directs that a written order be prepared, signed and filed, the order is “entered” on the date the signed order is filed.[12] Accordingly, one must closely examine the minutes to determine which of these three scenarios applies.

Extension of Deadlines Due to COVID-19

For the purposes of calculating the 60 or 180 day deadlines outlined above, if the last day to file a notice of appeal falls on a legal holiday, the deadline is extended to the next day that is not a holiday.[13] And the extension applies even if the court remains partially or fully “open” during the legal holiday.[14] As relevant to the current COVID-19 pandemic, these “legal holidays” may also include dates the court’s operations are impacted by public emergencies. Two important statutory provisions apply to these circumstances.

First, the Chair of the Judicial Council (who is also the Chief Justice of California) may deem dates on which an “emergency condition” substantially interferes with the public's ability to file papers with a court as a “holiday.”[15] These “emergency conditions” expressly include a “public calamity” or “epidemic” disrupting court operations. [16] And by deeming these dates as “holidays,” they can potentially extend the filing deadline for filing a notice of appeal. 

Second, The Chair of the Judicial Council may also order that, in the event of a “public health crisis,” any time period specified by the Appellate Rules of Court may be tolled or extended for no more than 30 days, and renewed thereafter in periods no greater than 30 days.[17] This would presumably include the time period to file a notice of appeal.[18]

Beginning on March 16, 2020, as a result of the COVID-19 pandemic, the Chief Justice did indeed begin invoking both of these powers under the above-cited statutory provisions. The specific dates of the orders vary in the trial courts from county to county and vary in the appellate courts from district to district.[19] However, generally speaking, the orders common to most counties are that the dates that a trial court has closed its business office to the general public are deemed “legal holidays” for purposes of computing the time for filing papers with that court. And the dates that any act is required under the Rules of Court in a given appellate district are extended by 30 days.[21]

Avoiding The Potential Malpractice Trap

The COVID-19 pandemic, and the resulting emergency orders issued by the Chief Justice present three potential malpractice issues related to the filing of a notice of appeal.

First, it is important to note that unlike other filing deadlines, the deadline for filing of a notice of appeal is jurisdictional, meaning that timely filing is an absolute prerequisite to the appellate court's power to entertain the appeal.[22] This means that courts have no authority to extend the deadline either by stipulation or court order.[23] And the court has no inherent power to set aside an untimely notice, nor may it be cured by consent, estoppel, or waiver.[24] Thus, the consequences of an untimely notice are dire.

To that end, if a client has a deadline to file a notice of appeal that landed during the court’s closure, or during a period of time where the attorney’s office was closed due to the “stay at home” order, the attorney risks returning to the office to find that their deadline has already passed. If a client received an adverse judgment or final order that they are considering appealing, it is imperative the attorney calculates their jurisdictional deadline to file a notice of appeal, or consult with appellate counsel to assist in that calculation. And the attorney must do so as soon as is practicable after the rendition of the adverse ruling—regardless of how long the courts remain closed or the “stay at home” order lasts. If the attorney waits until after the pandemic subsides, it may be too late.

Second, while the “legal holiday” and “duty to act” extensions should presumably toll any deadline falling during the court closure period, the deadline may only end up being tolled until the first day after the “legal holiday” ends. This means that if a client’s notice of appeal is not prepared and filed on the very first day the court re-opens for business, the notice will be untimely. Once again, any practitioner who waits until after this “holiday” is over to address this issue may be in for a rude awakening.

Lastly, while on their face, the “legal holiday” and 30-day extension rules appear to apply to the “filing” of a notice of appeal and the duty to timely do so under the Rules of Court, the legal community has not, as of the date of this writing, received clear instruction from the Chief Justice that these emergency orders specifically apply to the unique jurisdictional limitations of a notice of appeal deadline. In fact, for comparison, the Ninth Circuit Court of Appeal has announced that any filing extensions they grant for federal appeals do not apply to jurisdictional deadlines such as the filing of a notice of appeal.[25] And, because a notice of appeal is “filed” when it is “received” by the clerk’s office, rather than when it is ultimately file-stamped, an argument can be made that there is nothing stopping a party from timely “filing” their notice of appeal during the court closure by mailing the notice to the Court, even if they can’t personally file it in the business office.[26]

This is likely an overly draconian reading of the applicable laws, and we may receive clarification on this issue any day now that confirms that the emergency tolling orders do apply to notices of appeal. For example, as of April 9, 2020, the Fourth District Court of Appeal issued an emergency order confirming the 30-day extension applied to “[a]ll time periods specified by the California Rules of Court, including but not limited to the time to do any act required or permitted under the California Rules of Court,” which necessarily includes the filing of a notice of appeal.[27]

However, for the time being, best practices dictate that an attorney take all steps available to ensure that a client’s notice of appeal is timely served and “filed” (by mail if necessary) with the proper court under the original filing deadline, rather than assuming that the extension will apply in their case—and later finding out that it does not. There is little to no harm in filing an early notice of appeal—while an untimely notice can be disastrous. If it turns out the attorney filed the notice early, all they wasted was a postage stamp.

Conclusion

The COVID-19 pandemic presents trial attorneys with countless issues to consider as they attempt to adapt to daily changes in their practice and procedure. And the duration of the court closure and “stay at home” orders are uncertain. Accordingly, it is imperative that trial attorneys ensure that their client’s appellate rights are preserved during this period, and that they consult with an appellate attorney if they need assistance in ensuring they have properly considered these issues.

 

[1] Cal. Rules of Court, rule 8.104.

[2] Id. at subdiv. (a)(1).

[3] Id. at subdiv. (a)(1)(B).

[4] C.C.P. § 664.5(a).

[5] Cal. Rules of Court, rule 8.104 (a)(1)(A).

[6] C.C.P. § 664.5(a); Cal. Rules of Court, rule 5.413.

[7] Cal. Rules of Court rule 5.125;

[8] Cal. Rules of Court, rule 8.104(a)(1)(C).

[9] C.C.P. § 668.5.

[10]Cal. Rules of Court, rule 8.104(c)(3).

[11]Cal. Rules of Court, rule 8.104(c)(2).

[12]Ibid.

[13]C.C.P. §§ 12, 12a, 12b; Cal. Rules of Court, rule 8.60(a).

[14]C.C.P. §§ 134(d), 135.

[15]Gov. Code § 68115(a)(4).

[16]Gov. Code § 68115(a)(4).

[17] Cal. Rules of Court, rule 8.66(a) and (c).

[18] Cal. Rules of Court, rule 8.104.

[19] See https://newsroom.courts.ca.gov/news/court-emergency-orders-6794321 (complete list of Chief Justice’s emergency orders related to COVID-19).

[22] Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.

[23] Cal. Rules of Court, rule 8.104(b).

[24] See Marriage of King (2000) 80 Cal.App.4th 92, 114.

[26] See, e.g., Van Beurden Ins. Services, Inc., supra, 15 Cal.4th at 55.

 


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