VEENA GARG, Plaintiff and Respondent, v. RAJIV GARG et al., Defendants and Appellants.
G061500
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 9/7/22
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 30-2020-01128565)
OPINION
Ronald D. Steinbach for Plaintiff and Respondent Veena Garg.
David Zarmi and Stuart L. Wallach for Defendants and Appellants Rajiv Garg and Sadhana Garg.
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THE COURT:*
““[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.”” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881 [quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670 (Hollister), which reaffirmed the continuing vitality of Estate of Hanley (1943) 23 Cal.2d 120].)
Respondents move to dismiss this appeal as untimely. The notice of appeal was filed in the superior court more than 60 days after notice of entry of judgment was served upon appellants. (
Appellants oppose dismissal on the grounds that they made a timely attempt to electronically file the notice of appeal. With the advent of
A series of questions not yet answered in the case law present themselves: (1) does either (or both) rule 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?
We conclude: (1) both rules potentially apply to a notice of appeal, but only rule 8.77(d) is invoked by appellants; (2) a motion under rule 8.77(d) must be filed in the appellate court; (3) 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; and (4) appellants have not met that standard in this case.
FACTS AND PROCEDURAL HISTORY
On April 4, 2022, judgment was entered following a bench trial. The case involves a family dispute over real property. The portion of the judgment most relevant to this appeal is an award of $665,000 in damages to respondent due to financial elder abuse.
On April 6, 2022, respondent electronically served notice of entry of judgment (accompanied by a file-stamped copy of the judgment) on trial counsel for appellants. Appellants concede that electronic service of the notice of entry of judgment was authorized (
On May 23, 2022, appellants electronically served a notice of appeal on respondent. However, a notice of appeal was not actually filed by a superior court clerk until June 21—15 days too late.
On June 29, 2022, appellants filed a motion in the trial court, requesting an order filing the notice of appeal on May 23 “nunc pro tunc” (which translates
The trial court motion is currently set for an October 21, 2022, hearing. Opposition has not yet been filed in the trial court.
On July 20, 2022, respondent filed a motion in this court to dismiss the appeal. Respondent argues that the trial court lacks jurisdiction to rule on the pending motion, this court lacks jurisdiction to extend the time to file a notice of appeal, and the motion filed in the trial court by appellants lacks merit because the facts demonstrate that appellants’ counsel lacked reasonable diligence in their handling of the notice of appeal. The motion to dismiss does not actually cite or discuss rules 2.259(c) or 8.77(d).
On August 5, 2022, appellants filed opposition to the motion to dismiss. The opposition contends that the trial court has jurisdiction to hear the pending motion to deem the notice of appeal to be timely and this court should withhold action until the trial court rules.
The opposition characterizes the situation as murky. “[F]or technical reasons that trial counsel has been unable to ascertain, the superior court did not receive the notice of appeal” on May 23.
Appellate counsel David Zarmi filed a declaration alongside the opposition: (1) he was retained on May 20, 2022; (2) trial counsel was obligated to make all necessary filings in the superior court; (3) Zarmi sent a draft notice of appeal to trial counsel on May 22; (4) Zarmi inquired by email about the notice of appeal on May 23; (5) legal assistant Deborah Anne emailed Zarmi on May 24, stating that the notice of appeal had been filed and served; (6) subsequently, multiple emails were exchanged between Zarmi and trial counsel regarding designation of the record; (7) Zarmi periodically checked the superior court and appellate court online dockets; (8) in the view of Zarmi, the lack of a notice of appeal on the superior court docket “was
ANALYSIS
Respondent’s motion to dismiss contends this court’s purported “lack of jurisdiction” to consider an untimely appeal is the beginning and end of the analysis.
There are innumerable cases following the mandatory and jurisdictional rule established long ago by our Supreme Court. (E.g., Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1488 [no extension of time to file notice of appeal “even for mistake, estoppel, or other equitable reasons” because the “time for appeal is absolutely jurisdictional”]. ) Some Rules of Court also emphasize the lack of wiggle room. “[N]o court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (
And yet, the rule is not as “absolute” as appearances might suggest. The black letter law quoted to begin this opinion admits of certain “legal equivalent[s]” to a timely notice of appeal. (Hollister, supra, 15 Cal.3d at p. 670.) There are at least four situations in which the commonly understood method of meeting the deadlines set in rules 8.104 (civil), 8.308 (criminal), or 8.406 (dependency) is not a jurisdictional prerequisite to entertaining the appeal on the merits.2
Areas of Refuge from the Harsh Rule
First, in times of public emergency, the Chair of the Judicial Council can toll or extend the deadline to file notices of appeal. (
Second, when caused by a superior court clerk wrongly rejecting a timely-submitted notice of appeal, the absence of a timely file stamp does not deprive an appellate court of jurisdiction. (Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 769-770 [in course of decision on appeal, deeming appeal timely based on timely submission of notice of appeal to clerk]; Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 57-59;
Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1169-1173.) Documents are deemed filed upon receipt and clerks must file notices of appeal even if they are unaccompanied by required filing fees. (
Third, an institutionalized and self-represented litigant’s notice of appeal is deemed to be filed on the date it is put in the “prison mailbox” or otherwise handed off for processing to officials of the institution, regardless of whether it arrives at the superior court in time to be filed by the deadline. (See, e.g., Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 110-111 [holding that this rule, first established for criminal appeals in 1947, applies to civil litigants];
Fourth, in criminal law appeals and juvenile dependency appeals, ineffective assistance of counsel in failing to file a timely notice of appeal can provide grounds for allowing the appeal to proceed if the party shows diligence in addressing the issue. (In re A.R. (2021) 11 Cal.5th 234, 243; In re Benoit (1973) 10 Cal.3d 72, 82-87.)
Is there a fifth “exception?”3 Like several of the other “exceptions,” rules 2.259(c) and 8.77(d) would operate by classifying something short of obtaining an actual timely file stamp on the notice of appeal, by the deadline for doing so, as “good enough.”
Notices of appeal from superior court judgments must be filed in superior court. (
Hence, it is certainly plausible that the “Trial Court Rules” (
Arguably, rule 2.259(c) is merely a specific application—or slight extension—of the general rule that documents are deemed filed upon receipt. (
A ““document”” is defined by the Trial Court Rules to include a ““notice.”” (
In sum, nothing suggests that notices of appeal should be excluded from rule 2.259(c). Trial court clerks and judicial officers should strive to apply rule 2.259(c) in appropriate circumstances. (Cf.
Does Rule 8.77(d) Apply to Appellants’ Notice of Appeal?
Title 8 of the California Rules of Court consists of the “Appellate Rules.” (
considering the context of Title 8 as a whole, it is plausible that rule 8.77(d) applies to the filing of a notice of appeal.
Rule 8.77(d) appears to be broader than rule 2.259(c) in allowing a “failure at any point in the electronic transmission and receipt of a document” (rule 8.77(d), italics added) to serve as a ground for relief, not just a “technical problem with a court’s electronic filing system” (rule 2.259(c), italics added).
Applying rule 8.77(d) to notices of appeal is a somewhat awkward fit. Article 5 of the Appellate Rules consists of rule 8.70 to rule 8.79. Article 5 is directed—for the most part—toward documents filed in the appellate court.
As noted above, notices of appeal are filed in the superior court, not the Court of Appeal. Based on the foregoing considerations, one might reasonably read rule 8.70 as restricting the application of Article 5, including rule 8.77(d), to documents filed in the Court of Appeal or Supreme Court.
But other textual indications in Article 5 (and rule 8.77(d) in particular) support the application of rule 8.77(d) to notices of appeal.
““Electronic filing”” is defined to include actions taken outside appellate courts, to wit, “the electronic transmission to a court of a document in electronic form for filing.” (
Rule 8.77(d) does not use the term “electronic filer” (which is defined to be a person filing with “the court,” i.e., an appellate court), instead opting for the undefined term “filer,” which could include a person filing electronically with a court other than an appellate court.
Rule 8.77(d) governs the failure to timely file “a document.” The word ““document”” is defined to mean, for purposes of Article 5, “any writing submitted to the reviewing court by a party or other person, including a brief, a petition, an appendix, or a motion” or “any writing transmitted by a trial court to the reviewing court, including a notice or a clerk’s or reporter’s transcript . . . .” (
The pertinent alleged failure in this case under rule 8.77(d) occurred at some “point in the electronic transmission . . . of a document.” The phrase “electronic transmission” is defined in a manner that does not shed light either way in this dispute. (See
Though the rules are ambiguous, our view is that rule 8.77(d) should be applied to notices of appeal. Notices of appeal serve as the bridge between
protections. And as discussed in further detail below, when courts are authorized by statute or rule to avoid the harshness of the jurisdictional appellate deadline, they should do so whenever possible.
Which Court Determines Whether Relief Issues Under Rule 8.77(d)?
“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.” (
As already explained, Article 5 defines ““[t]he court”” to be “the Supreme Court or a Court of Appeal.” (
Moreover, 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. (See, e.g., In re A.R., supra, 11 Cal.5th at p. 257 [“as a general matter, an application seeking to pursue or perfect an appeal is properly directed to the Court of Appeal rather than the superior court”]; Pangilinan v. Palisoc, supra, 227 Cal.App.4th at pp. 769-770 [as part of opinion reversing order, deems a civil notice of appeal—which had been wrongly rejected upon its first submission to the superior court clerk—to have been timely]; People v. Zarazua (2009) 179 Cal.App.4th 1054, 1060-1063 [constructive filing of untimely criminal notice
of appeal caused by ineffective assistance of counsel may be granted by motion in the appeal; there is no need for a separate proceeding].)4
What Burden of Proof Applies to Factual Determinations?
The party invoking rule 8.77(d) must establish by motion: (1) the notice of appeal was not filed by the deadline because “of a failure at any point in the electronic transmission and receipt” of the notice of appeal; and (2) the party filed the notice of appeal “as soon thereafter as practicable.”
Absent specific law to the contrary, general principles of law dictate that the moving party has the burden of proof to establish facts by a preponderance of the evidence. (
However, case law acknowledges a “well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ [Citation.] . . . [T]here are many cases in which this policy, implemented in accordance with ‘applicable rules,’ will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period.” (Hollister, supra, 15 Cal.3d at p. 674.)
Courts have applied the “doubtful cases” rule in a variety of contexts to allow appeals to proceed when timeliness is uncertain. (E.g., Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902-903 [civil appellate deadline rules are strictly construed to minimize harsh results]; Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 848-849 [dispute over when notice of entry of judgment was served resolved in favor of appellant]; Montgomery Ward & Co. v. Imperial Casualty & Indemnity Co. (2000) 81 Cal.App.4th 356, 372-373 [same]; Rapp v. Golden Eagle Ins. Co., supra, 24 Cal.App.4th at p. 1172 [citing doubtful cases rule in support of deeming notice of appeal to be timely following superior court clerk’s wrongful rejection].)
Is There Good Cause to Deem the Notice of Appeal to be Timely Nunc Pro Tunc?
As an initial matter, we treat appellants’ motion filed in the trial court and the opposition papers filed here as satisfying the obligation to file a motion in this court under rule 8.77(d). The law was not clear prior to this opinion and it would be unfair to dismiss the appeal merely because appellants filed their motion for relief in the trial court.
Was the deadline missed because of “a failure at any point in the electronic transmission and receipt” of the notice of appeal? (
electronic filing service was instructed to file the notice of appeal. Absent evidence disproving this theory, it is a reasonable inference from the record that a failure in the electronic transmission of the notice of appeal caused the lack of a timely notice of appeal. Applying the doubtful cases doctrine to the record before us, we reject the inference that a more mundane reason was the true cause of the blown deadline (e.g., no attempt to electronically file the document occurred).
Did appellants file the notice of appeal and motion for relief “as soon thereafter as practicable?” (
Respondent’s request for judicial notice in support of the motion to dismiss is granted. The motion to dismiss the appeal is granted. The appeal is dismissed. Respondent shall recover costs incurred on appeal.