Don't forget your proof of service when serving notice of entry of judgment

If no notice of entry of judgment is given, then the appellant has 180 days after entry of judgment within which to file a notice of appeal pursuant to California Rules of Court, rule 8.104(a).  That's right, the time period is 120 days longer than the two other options given in that rule.  For example, if the superior court clerk mails a copy of a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, which shows the date of mailing, then the time period is cut down to 60 days.  The same 60-day period applies when a party serves a "Notice of Entry" of judgment or a file-stamped copy of the judgment along with proof of service.

This can be a tricky calculation because there is no printed or form "Notice of Entry," so attorneys may be looking for something that will never be served.  Sending a conformed, filed-stamped judgment is the same thing as typing up a notice and attaching the judgment.  Again, the omission of any notice can be a trap for the unwary attorney, who is sitting around waiting for a formal looking "Notice of Entry."

Sending out notice of entry of judgment is such a common practice that I can't remember the last time that I had 180 days to wait before filing a notice of appeal.  And even when someone hands me a file and there is no notice of entry, I still can't believe my eyes and operate under a 60-day deadline.  That way, if I am wrong and I really had 180 days, so what?  Why not  get the appeal on the road?  And if for some reason the "Notice of Entry" was served, then I have avoided a nice malpractice lawsuit.  If you take the earliest date as the deadline, you can't be late.

A different sort of problem arose in Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 31.  In that case, the clerk did not mail a notice of entry of judgment.  Respondent's attorney mailed a copy of the judgment to appellants' counsel, along with a cover letter advising it had been signed by the court.  No proof of service was included in the mailing.  Apparently, the judgment was not conformed to reflect the filing stamp.  The court's file contained a proof of service that was filed several months after the service.

The appellants argued the mailing did not satisfy rule 8.104(a)(2) because it was not "accompanied by proof of service."  As such, the appellants would have had 180 days within which to file their notice of appeal.  In an attempt to support their argument that the notice of appeal was untimely, respondents argued the cover letter accomplished the same purpose and they substantially complied by later filing a proof of service.  If the respondents were correct, the appeal would be untimely and subject to dismissal.

Filing a notice of appeal is jurisdictional and the right to relief is so narrow and extreme, you might as well forget it.  Because the consequences of failing to file a timely appeal are so extreme, the courts will strictly construe the statutory filing requirements.  The court in Thiara held that a notice of entry or file-stamped copy of a judgment will not trigger the 60-day period unless it strictly complies with the provisions of rule 8.104(a)(2), which require that these documents be accompanied by a proof of service.  It stated, "We cannot interpret the rule as permitting the 60-day time period to commence upon service of a notice of entry or the file-stamped copy of the judgment unaccompanied by a proof of service without rendering the words requiring a proof of service surplusage, a result to be avoided.  The requirement of a proof of service was added to the rule for a specific purpose."  (Id. at p. 57.)

The appellants were free to proceed with their appeal, which resulted in a reversal of the judgment.  The respondents can only wonder what would have happened if they had included a proof of service with the notice and judgment.  Would the appellants have filed their notice of appeal within that 60-day period?