Metropolitan News-Enterprise


Thursday, September 8, 2022


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C.A. Sets Rules for Relief Where Appeal Notice Filed Late

Opinion Says Snafus With Electronic Filing Can Provide Basis for Allowance If Motion Is Speedily Made


By a MetNews Staff Writer


Div. Three of the Fourth District Court of Appeal held yesterday that where a party transmits a notice of appeal to an electronic filer that fails to file the notice in the Superior Court, relief may be granted by the Court of Appeal if the notice is filed more than 60 days after the notice of judgment was served—but only if the appellant acts with alacrity in spotting the failure and making its motion.

 In a “By the Court” opinion, Div. Three dismissed the appeal by Rajiv and Sadhana Garg from a judgment in favor of Veena Garg. The members—Presiding Justice Kathleen O’Leary and Justices William W. Bedsworth and Joanne Motoike—declared that relief is available under two circumstances where there is a foul-up in the electronic transmission of a notice of appeal, one of which would apply to the present situation, except that the lawyers for the would-be appellants did not seek relief at the earliest practicable time.

The Orange Superior Court on April 6, 2022, electronically served notice of entry of judgment for $665,000 in favor of the plaintiff in an elder-abuse case. According to declarations, on May 23, 2022, trial counsel Stuart L. Wallach instructed legal assistant Deborah Anne to file a notice of appeal (which was served that day on the plaintiff), and she uploaded the notice to DDS Legal Service, an efiling agent.

No Immediate Concern

Appellate lawyer David Zarmi said in a declaration that he was not immediately concerned that the notice had not shown up on the Orange Superior Court’s online register because in his “experience it can take up to three weeks for filings to appear in superior court online dockets filings.” But on June 20, he contacted Wallach, who had the notice filed the following day.

A motion was filed on June 29 in the Superior Court seeking an order declaring the notice to be filed, 2022, nunc pro tunc, on May 23.” The respondent then moved in the Court of Appeal on July 20 for a dismissal of the appeal, citing the usual rule that compliance within the 60-day filing rule is jurisdictional.

Yesterday’s opinion says that relief was potentially available to the appellants under California Rules of Court, rule 8.77(d), which provides:

“If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.”

‘Awkward Fit’

The justices noted that “[a]pplying rule 8.77(d) to notices of appeal is a somewhat awkward fit” because the notices are filed in the Superior Court and “one might reasonably read rule 8.70 as restricting the application” of the rule “to documents filed in the Court of Appeal or Supreme Court.”

However, they concluded that the rule should be applied to notices of appeal, explaining:

“Notices of appeal serve as the bridge between superior courts and courts of appeal. They are integral to proceedings at both levels. A close reading of the text of rule 8.77(d) does not clearly exclude notices of appeal from its protections. And…when courts are authorized by statute or rule to avoid the harshness of the jurisdictional appellate deadline, they should do so whenever possible.”

O’Leary, Bedsworth and Motoike declared that relief should be sought in the Court of Appeal rather than the trial court, pointing out that “cases providing similar relief hold that appellate courts can act directly in this situation, rather than requiring the formalistic step of returning to the trial court or filing a petition for extraordinary relief.”

No Relief

In the present case, the jurists said, relief is unavailable. They wrote:

“Did appellants file the notice of appeal and motion for relief ‘as soon thereafter as practicable?’ (Rule 8.77(d).) No. Appellants attempted to file the notice of appeal on May 23, 2022. Appellants did not actually file the notice of appeal until June 21, 29 days later (and 15 days after the deadline to file a notice of appeal). This was not as soon as practicable….Regardless of the circumstances, it is difficult to imagine  how a party could ever meet the standard set by rule 8.77(d) with a 29-day gap between  the initial attempt to file and the follow-up filing. Certainly, on this factual record, appellants’ lack of diligence precludes relief.”

The opinion draws attention to another rule—2.259(c)—which provides: “If a technical problem with a court’s electronic filing system prevents the court from accepting an electronic filing on a particular court day, and the electronic filer demonstrates that he or she attempted to electronically file the document on that day, the court must deem the document as filed on that day.” It notes:

“Nothing in the record suggests there was a technical problem with the court’s system.”

The court said there are other recognized circumstances under which the time limit is not enforced, including where the chairperson of the Judicial Council extending time limits during an emergency (as Chief Justice Tani Cantil-Sakauye has done during the COVID-19 pandemic). Three other instances were cited: where a superior court clerk erroneously bounces a timely-submitted notice of appeal; a pro per inmate’s notice is timely placed in the “prison mailbox” but tardily forwarded by prison authorities; and, in criminal law appeals and juvenile dependency appeals, there was not timely filing owing to a lawyer’s incompetence.

The case is Garg v. Garg, G061500.


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