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Court of Appeal:
60-Day Period for Filing Notice of Appeal Wasn’t Triggered
Justices Say Email With Ruling Attached Wasn’t Sufficient to Constitute Service
By a MetNews Staff Writer
Div. One of the First District Court of Appeal has held that where the Clerk’s Office of a superior court transmits a judgment or appealable order as an attachment to a email, though the date of transmission is reflected, that’s not enough, without more, to trigger a 60-day period within which to file a notice of appeal.
“[A] signed ‘certificate’ of service by the clerk must be attached to, stamped on, or imbedded in the document being electronically served so the time to appeal can readily be determined from a single document,” the court declared in an opinion filed Monday.
California Rules of Court, rule 8.104(a)(1)(A), requires that a notice of appeal be filed within “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.”
If there’s no such service by the clerk, or by the opposing party pursuant to rule 8.104(a)(1)(B), the period for filing a notice of appeal is, under rule 8.104(a)(1)(C), “180 days after entry of judgment.”
On Nov. 27, 2024, a San Francisco Superior Court clerk sent an email to parties reading, “Please see the attached Order Denying Plaintiffs Motion for Attorney’s Fees.” Plaintiff Wing Inflatables’ Inc. filed a notice of appeal on April 14, 2025—112 days after the email was sent.
The defendants, Certain Underwriters at Lloyd’s and others, moved in Div. One for a dismissal of the appeal, asserting that the operative rule is 8.104(a)(1)(A) and that Wing waited too long to file its notice.
Banke’s Opinion
Acting Presiding Justice Kathleen Banke authored the opinion denying Lloyd’s motion. Rule 8.104(a)(1)(C) applies, she concluded.
Banke pointed to Code of Civil Procedure §1013a(4), relating to service of hard-copy documents by clerks. It sets forth that a certificate of mailing “is sufficient for service of process in which the clerk or deputy clerk signing the certificate” follows prescribed steps.
“There is no rational reason why a ‘certificate’ of service by a court clerk serving a document electronically would not also be signed, regardless of the lack of any requirement that such signature be ‘under penalty of perjury,’ ” she wrote.
“We therefore agree with Wing that, given the lack of a signature, the superior court clerk’s transmission e-mail cannot be deemed a certificate of electronic service and, therefore, is not sufficient proof, or to use the language of rule 8.104(a)(1)(A), not a sufficient ‘showing,’ of service.”
She added that “even if the clerk’s transmittal e-mail had contained an electronic signature,” in addition to information required by Code of Civil Procedure § 1013b, “we would conclude the e-mail and attached file-endorsed copy of the order were insufficient to trigger the 60-day period in which to appeal set forth in rule 8.104(a)(1)(A).”
2007 Decision
That’s so, she explained, in light of the California Supreme Court’s 2007 decision in Alan v. American Honda Motor Co., Inc. There, the court dealt with the mailing by a clerk of two documents which, when read together, reflected that a ruling was mailed on Jan. 2, 2003.
Then-Justice Kathryn Werdegar (now retired) wrote:
“[W]e conclude that rule 8.104(a)(1) does indeed require a single document—either a ‘Notice of Entry’ so entitled or a file-stamped copy of the judgment or appealable order—that is sufficient in itself to satisfy all of the rule’s conditions, including the requirement that the document itself show the date on which it was mailed.”
She continued:
“That having been said, we see no reason why the clerk could not satisfy the single-document requirement by attaching a certificate of mailing to the file-stamped judgment or appealable order, or to a document entitled ‘Notice of Entry.’ Obviously a document can have multiple pages. But the rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal.”
Applying Alan
Banke said in Monday’s opinion:
“Although Alan dealt with service by mail, its reasoning readily applies to electronic service. Thus, by parity of reasoning, having to look at both a transmittal e-mail from the court clerk and the document attached thereto to determine when the time to appeal commences, does not comport with Alan’s ‘single document’ rule.”
The jurist remarked:
“It also appears to be the practice in some superior courts for clerks to separately attach to a transmittal e-mail a file-endorsed copy of the document being served and the certificate of service. While this manner of electronic service may, as a practical matter, inform parties as to the date of service, it, too, does not strictly comport with Alan’s ‘single document’ requirement.”
The case is Wing Inflatables Inc v. Certain Underwriters at Lloyd’s, 2025 S.O.S. 2055.
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