Are two attorneys better than one?

In Adaimy v. Ruhl (February 28, 2008, B193745) ___ Cal.App.4th ___, 2008 WL 518224, a case recently decided by Division One of the Second Appellate District, the Court of Appeal dismissed Mr. Adaimy's appeal as untimely. What happened? Adaimy filed a notice of intent to move for new trial after receiving notice of entry of judgment. The new trial motion was heard on August 3, 2006 and on August 7th, the court entered its order denying the motion. On that same day, the clerk mailed notice of entry of the order.

Under California Rules of Court, Rule 8.108(a), if a party serves and files a valid notice of intention to move for new trial and the motion is denied, the time to appeal is extended until the earliest of 30 days after the superior court clerk mails or a party serves an order denying the motion or notice of entry of that order. If neither the clerk or a party serves notice, the appealing party would have 180 days after entry of judgment to file the notice. According to the facts of this case, the time for filing the notice of appeal commenced to run on August 7, 2006. The court concluded that Adaimy's notice of appeal was due on September 6, 2006 but he did not file it until the following day on September 7, 2006.

In a last ditch effort to save his appeal, Adaimy argued that the lower court did not properly serve notice of entry of judgment or the order denying new trial, thus giving him 180 days to file his appeal. His argument was based on the fact that on May 17, 2006, he filed an association of counsel, adding a new firm, and he requested all documents be served on all counsel. The clerk only served the original attorney.

The crucial issue was whether the clerk was required to serve both law firms. The court of appeal found that service on only one was sufficient and that one attorney received actual notice of the entry of the judgment and subsequent order.

The result may seem unnecessarily harsh. After all, Adaimy was only one day late. But the filing of the notice of appeal is jurisdictional and an absolute prerequisite to the appellate court's power to consider the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) A party in a civil case cannot seek an extension from the court or stipulate with the opposing party. And there is no relief under Code Civ. Proc. section 473(b). (Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373.)

There are a few lessons to be learned here:

• If you have associated into a case, do not assume that the other attorney will take care of matters or that you both have the same documents.


• Maintain communications with your co-counsel about strategy, job tasks, and calendaring dates.


• Do not wait to file the notice of appeal until the last day. Your calculations might be off or something can always happen on the way to the courthouse to prevent a timely filing.

Even though Adaimy argued service was defective, it seems that at least one of his attorneys had actual notice and probably thought he or she was filing the notice of appeal on the very last day. Being just one day too late resulted in the loss of Adaimy's appeal (and a possible malpractice action against the attorneys).