Tuesday, January 4, 2011

Appeal Timely Though Filed 193 Days After Order

The last possible day to file a notice of appeal from an appealable order is 180 days after the signed order is filed. (Cal. Rules of Court, rule 8.104(d)(3)). But "what happens when a file-stamped appealable order disappears into the judicial equivalent of a sock drawer?" (In re Marriage of Mosley (2010) 2010 Cal. App. Lexis 2079). The Fourth Appellate District of the Court of Appeal of the State of California addressed this question and held that an order is not "filed" unless it is filed in a public place where its presence is capable of being known.

A proposed order modifying child and spousal support, prepared by the ex-husband, was signed by the court and file-stamped on April 1, 2010, but for unknown reasons, the order was not physically placed in the court's file, was not entered on the court's computerized case management system, and was not served on the parties. The appellant wife phoned the court to inquire about the order, but she was told by the court clerk that the judge would be getting to it as soon as she was able. When the appellant phoned back she was told nothing had been filed. On August 20, 2010, the court clerk located the order that had been "misplaced." On September 10, 2010, the order was entered into the court's computerized case management system. On October 1, 2010, the wife filed her notice of appeal from the order, 193 days after the file-stamped date of April 1, 2010.

The Court of Appeal issued an order to the parties that it was considering dismissing the appeal as untimely because the notice of appeal was filed more than 180 days after the appealable order modifying child and spousal support.

The appellant wife submitted a letter brief in response to the appellate court's order, along with evidence in the form of her sworn declaration, copies of her telephone records, and copies of her e-mails with respondent husband, all of which showed that the order had been misplaced and that she had been diligent in searching for it. Also, the court clerk submitted a declaration stating the order had been misplaced and had not been located until August 20, 2010. The respondent husband did not oppose or contradict any of the wife's evidence.

The Court of Appeal found that wife successfully rebutted the presumptive filing date of April 1, 2010, by showing that the order was not a public record and that she had been diligent in searching for it. Under these circumstances the Court of Appeal ruled that the 180-day limit, within which an appeal must be filed, begins to run from the date the appealable order was filed as a public record. Since the order was placed in the court's computerized case management system on September 10, 2010 (where it was presumably viewable by the public) the notice of appeal filed on October 1, 2010, was timely.

The Court of Appeal explained that the purpose of the 180-day time limit to appeal derives from the the need for finality. "Without an outside limit, orders could be appealed years after the fact based on deficiencies in service." Hence, "Litigants are on inquiry notice that a judgment may be forthcoming and have an outside deadline of 180 days from entry of that judgment to appeal." The lack of notice of entry of judgment does not stop the 180-day clock from running. The lack of notice does not jeopardize the judgment.

But, the 180-day rule presupposes that so-called "filed" documents in the offical record are open and available to the public. Such records need to be available to the public in order to avoid an absurdity and to preserve the constitutional right of appeal. "Without such a reasonable and sensible construction, trial courts (whether wittingly or unwittingly) could shield judgments from appellate review by holding them in pectore until the 180-day outside time limit had run its course. This plainly cannot be the law."

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