The Late Notice of Appeal
A plaintiff sued a former business partner for fraud and breach of fiduciary duty. After a bench trial, the court entered judgment for the defendant on March 1. On March 3, the plaintiff filed a timely motion to vacate the judgment under Code of Civil Procedure section 663, arguing that the judgment was based on an erroneous legal theory. The court denied the motion on April 10. The plaintiff did not file a notice of appeal until May 15. The defendant argues that the appeal is untimely because the notice was filed more than 60 days after the March 1 judgment. The plaintiff contends that the motion to vacate extended the time to appeal. The clerk served notice of entry of judgment on March 2. The plaintiff is in California state court.
1. Does the motion to vacate extend the time to appeal? What is the deadline for filing the notice of appeal?
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Under California Rules of Court, rule 8.108(c), a timely motion to vacate under Code of Civil Procedure section 663 extends the time to appeal. The extension is to the earliest of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (2) 90 days after the first notice of intention to move or motion is filed; or (3) 180 days after entry of judgment. Here, the motion was filed on March 3, so the 90-day period runs to June 1. The order denying the motion was entered on April 10, but the record does not indicate when it was served. If the order was served on April 10, the 30-day period would run to May 10, making the May 15 notice late. However, if the order was not served until later, the deadline could be later. The earliest of the three dates controls. Because the May 15 notice was filed more than 30 days after April 10, the appeal is likely untimely unless service of the order occurred after April 15. The plaintiff should verify the service date of the order. If the order was served on April 10, the deadline was May 10, and the appeal must be dismissed.
2. Assume the order denying the motion was served on April 20. Would the May 15 notice be timely? Explain.
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Yes. Under rule 8.108(c), the 30-day period runs from the date the order denying the motion or a notice of entry of that order is served. If the order was served on April 20, the 30-day period would end on May 20. The notice of appeal filed on May 15 would be timely. The 90-day period from the filing of the motion (March 3) would end on June 1, and the 180-day period from entry of judgment would end in late August. The earliest of these dates is May 20. Therefore, the May 15 notice is timely.