Fourth District, Division 3 Dismisses Appeal Based on Untimely Filing.
The Fourth District, Division 3, in Kimball Avenue v. Franco, Case No. G039767 (4th Dist., Div. 3 May 13, 2008), chronicles a sobering message for any unsuccessful litigant—appeal filing deadlines are jurisdictional and a lower court, no matter how well intentioned, cannot rescue an untimely appeal.
On April 30, 2007, unbeknownst to the later appealing plaintiff, the trial court entered judgment enforcing a settlement and granting defendant’s motion for attorney’s fees. This was done after several minute orders had already issued, and the April 30 judgment had been entered with confusing handmade corrections.
242 days after entry of the judgment on April 30, 2007, plaintiff appealed.
Result: too late.
Reason: Plaintiff only had 180 days from entry of judgment—where neither the clerk nor a party serves notice of entry earlier—in which to appeal. (Cal. Rules of Court, rule 8.104(a)(3).)
The trial court admirably tried to help the plaintiff clear up the confusing docket of rulings and judgment by granting a motion to vacate the judgment and reinstating it effective December 11, 2007. However, the Court of Appeal found the trial court lacked jurisdiction to vacate the judgment, leaving plaintiff out of luck on appeal. In finding that the 180 day deadline meant just that, the appellate court pithily observed: “The lack of notice [from the clerk or a party] does not jeopardize the judgment.” (Slip Opn., at p. 4.)
An added caution exists for parties feeling aggrieved from attorney’s fee orders. They are separately appealable, and there is a split in opinion among appellate courts on whether a separate appeal must be filed to challenge properly the fee award. That will be explored in an upcoming post. Nevertheless, prudence would dictate appealing separately from a fee award and asking the Court of Appeal to consolidate with the appeal of the merits judgment. (PRACTICE POINTER—Fourth District, Division 2 frequently consolidates merits and fee appeals on its own motion, beating litigants to the punch in order to avoid a two-stage review process.)