New Law Regarding Filing a Notice to Appeal in the California Courts

By Eric Ganci

Garg v. Garg, filed 9/7/22.

In the California Court systems, you may have the ability to file an appeal. But the appeal must be filed timely, or else it may be barred. This 9/7/22 Court of Appeal decision Garg v. Garg address new law regarding filing a notice to appeal.

To start, generally per California Rules of Court, Rule 8.104: “a notice of appeal must be filed on or before the earliest of:

(A)  60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served;

(B)  60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

(C)  180 days after entry of judgment.

Id., at subsection (a)(1).

Also generally, Parties may be able to file a request to extend the above deadlines per California Rules of Court, Rule 8.108.

If you do not file the appeal nor the request to extend the timeline to appeal, “[s]uch facts typically doom a civil appeal.”

 

What happened in Garb?:

Appellants opposed dismissal arguing “they made a timely attempt to electronically file the notice of appeal.”

Quoting Garb: With the advent of electronic filing, two rules of court were enacted that arguably shelter (some) tardy notices of appeal from the jurisdictional deadline:

[California Rules of Court] Rules 2.259(c): “If a technical problem with a court’s electronic filing system prevents the court from accepting an electronic filing … the court must deem the document as filed on that day”]; and

[California Rules of Court] 8.77(d): if “good cause” is shown based on “a failure at any point in the electronic transmission and receipt of a document, … the court may enter an order permitting the document to be filed nunc pro tunc”].

 

What are the issues in Garb?:

Garb addresses several issues regarding Rules 2.259(c) and 8.77(d)never decided per our Courts. The issues and the Courts holdings here are:

(1) does either (or both) rule [California Rules of Court, rules 2.259(c), 8.77(d)] apply to notices of appeal;

(2) if so, which court (i.e., the trial court or the court of appeal) determines whether relief is provided to the appellant;

(3) what burden of proof applies to factual determinations under the applicable rule or rules; and

(4) does the evidence in this case justify providing relief under the applicable rule or rules?

 

So, addressing and answering each question, the Court here holds:

(1) Does either (or both) rule [California Rules of Court, rules 2.259(c), 8.77(d)] apply to notices of appeal:

“[B]oth rules potentially apply to a notice of appeal, but only rule 8.77(d) is invoked by appellants[.]”

 

(2) If so, which court (i.e., the trial court or the court of appeal) determines whether relief is provided to the appellant;

“[A] motion under rule 8.77(d) must be filed in the appellate court[.]”

 

(3) What burden of proof applies to factual determinations under the applicable rule or rules?

“[A] party seeking relief under rule 8.77(d) must demonstrate “good cause,” which includes a preponderance of the evidence that an attempt to electronically file the document was made prior to the expiration of the deadline and that diligence was shown in promptly filing the notice of appeal after the failed attempt[.]”

 

(4) Does the evidence in this case justify providing relief under the applicable rule or rules?

“[A]ppellants have not met that standard in this case.”