When do you file your notice of appeal?

In Bi-Coastal Payroll Services, Inc. v. California Insurance Guarantee Association (2009) 174 Cal.App.4th 579, the Second Appellate District, Division Five, held that the plaintiffs' duty to file the notice of appeal arose from service of notice of entry of judgment, and not service of the trial court's earlier minute order.

In Bi-Coastal,  the plaintiff voluntarily dismissed a cause of action after the trial court sustained a demurrer without leave to amend as to several other causes of action. The parties then stipulated to entry of judgment, which was accepted by the trial court in a minute order, which also ordered entry of judgment.  The minute order was served on the parties by the clerk.  Plaintiffs then gave formal notice of entry of the judgment and filed a notice of appeal.

The operative rule in this situation is California Rules of Court, Rule 8.104(a), which sets forth the dates for filing a notice of appeal.  Generally, a party has 180 days after entry of judgment; however, that period of time can be cut down to 60 days after either a party or the clerk serves notice of entry of judgment.  That notice can be in the form of a document entitled "Notice of Entry" of judgment or it can be accomplished by serving a file-stamped copy of the judgment, which isn't required to have any language that notice of entry of judgment is intended.

The minute order mailed out by the clerk in Bi-Coastal was not entitled "Notice of Entry" of judgment but rather, "Court Order re:  Stipulated Judgment."  Nor did the minute order give notice of entry of judgment because it was not file-stamped as required by Rule 8.104(a)(1).  The fact the minute order contained language of "notice of entry of order" was not sufficient because the minute order had a different title and expressly required plaintiffs' attorney to give notice.

The court quoted language, stating, "'Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.'"  (Id. at p. 586.)  I wish it were that easy.  Attorneys frequently call to seek help in calculating when the notice of appeal must be filed.  It's not always clear and all relevant documents should be examined.  For instance, some orders are simply orders while others are orders combined with judgments.  Some minute orders appear complete while others require the preparation of formal orders.  A party may prepare a document entitled a "Notice of Entry of Judgment," which seems self-explanatory but the service of a file-stamped judgment can serve the same purpose without indicating its intent.  All can have an impact on the date the notice of appeal is due.

Of course, the easiest advice is to tell the appealing party's attorney to take the earliest date and file the notice of appeal within 60 days of that date.  A party can never be late in that instance.   In any case, the due date for the notice should be calculated immediately and California Rules of Court, rules 8.104 and 8.108 should be carefully examined to ensure compliance.