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Appeal and Writs

Appellate procedure begins with determining whether an order is writtable, appealable, or both (this assumes that a proper record was made and that issues were preserved for a writ or appeal).   The information on this site detailing various procedural requirements and deadlines is neither exhaustive nor authoritative, but offered as a helpful introduction.   Find out more about writs and appeals at www.PerfectAppeal.com .

Writs and Appeals offer an avenue for raising a challenge to issues that were incorrectly decided at or before the trial stage of the proceedings.   Appeals and Writs are time consuming endeavors and require a comprehensive review of all the legal and factual issues raised during the case.   Appellate procedure begins with the Notice of Appeal.

The Notice of Appeal is jurisdictional--it vests the appellate court with jurisdiction and, in most cases, terminates the lower court's jurisdiction.   Accordingly, since parties cannot consent to jurisdiction, the appellate court is required to dismiss an appeal if the notice of appeal is not filed before the statutory deadline.   Typically, one of three deadlines will govern the time within which a notice of appeal must be filed: (1) 60 days after any party's Notice of Entry of Judgment; (2) 60 days after the Clerk's Notice of Entry of Judgment; or (3) 180 days after entry of the judgment. If more than one deadline applies, the earliest time within which the notice must be filed, governs.

In cases where the lower court acted in excess of jurisdiction or in cases affecting fundamental rights, the appellate court may treat an untimely appeal as a writ proceeding under a "special circumstances" exception; however, not all courts of appeal will necessarily apply the exception.   Consult an experienced Writs and Appeal Attorney to help unravel the pitfalls of Appellate cases.   Contact us for help with your Appeal or Writ.

60 Days after Party's Notice of Entry of Judgment : A notice of appeal must be filed (with the clerk of the court issuing the judgment or order being appealed) 60 days after the date of service of any party's notice of entry of judgment or file-stamped copy of the judgment. In other words, the date of service starts the clock, not a party's receipt of the notice of entry of judgment.   If, however, the deadline falls on a judicial holiday or weekend, the time is extended to the next day that is not treated as a holiday.

60 Days After Clerk's Notice of Entry of Judgment : This deadline typically applies in marital and pro per cases because the superior court clerk is only required to mail a notice of entry of judgment under CCP 664.5 in marriage dissolution, annulment, and separation cases, paternity cases, pro per proceedings, and those cases where the judge orders the clerk to file a notice of entry of judgment.

180 Days After Entry of Judgment : This deadline applies if neither a party nor the clerk give notice of entry of judgment to the appealing party. It is also the outer limit beyond which time to appeal cannot be extended.

Appealable Orders : Applying the above rules to calculate the time from which to file a Notice of Appeal from an appealable order is not necessarily instinctive, so beware. The date from which time begins to run for an appealable order is the date upon which the order is signed and filed if the order is not entered in the minutes or if the order is entered in the minutes as requiring preparation of a written order.   To summarize, the date the order is signed and filed is the date from which time begins to run if: (1) The order is not entered in the minutes; or (2) the order is entered in the minutes as requiring preparation of a written order.

Otherwise, in all other cases, regardless of local rules requiring preparation of a written order, the date from which time begins to run is the date the order is entered in the permanent minutes.

The Right to Appeal

The right to appeal is governed by statute, and typically embraced by the strictly construed Code of Civil Procedure, which codifies the one final judgment rule by listing generally appealable orders and judgments.

The simplest way to determine whether to take a writ, appeal, or both, is by ascertaining whether the order is appealable.   If it is unclear whether an order is appealable under CCP 904.1 ( e.g. , there is a split in the districts concerning whether orders imposing sanctions for less than $5,000, are appealable), then it is judicious to file both a writ and a notice of appeal.   Why? A notice of appeal is jurisdictional; thus, if the court of appeal determines that an order was appealable, but review was sought by writ, the court will be required to dismiss the writ for want of jurisdiction.

The rules on this issue are complex, but our research department are meticulously prepared in order to give you the best chance of success or your case. We have a proven track record of preparing writs and appeals 100% free of procedural defects, though the same cannot be said for our adversaries.   In one case, we successfully pursued reversal of an appellate decision in favor of the California Attorney General for failing to provide an adequate record to enable review.

The results here are not intended as a guarantee or promise of a similar disposition in a similar case.  Each case has its own unique set of facts and issues that a skilled criminal defense attorney will emphasize to obtain the best possible outcome.

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