Practicing before any court requires familiarity with the governing rules. In an appeal, a misstep may doom your case before you even begin drafting your opening brief. A well-known appellate rule is that the filing deadline for the notice of appeal is jurisdictional. However, perfecting an appeal involves much more than simply ensuring timely filing of a notice of appeal. There are other critical rules to follow.
A recent California court of appeal decision serves as a reminder of one potential pitfall in the filing of a notice of appeal. In Malbrue v. County of Los Angeles, Case No. B264115 (2d Dist., Div. 8, Dec. 14, 2016), the plaintiff and appellant, Kyle Malbrue, sued the County of Los Angeles and former Sherriff Lee Baca asserting five causes of action, including wrongful death on behalf of Kyle’s father who died while incarcerated. The trial court granted summary judgment in favor of the county. In doing so, the court refused to consider an expert declaration submitted by Kyle because it was untimely. Kyle moved for relief from the judgment citing Code of Civil Procedure section 473, subdivision (b), which provides, in relevant part, “The court may, upon terms as may be just, relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Kyle’s attorney also submitted a “declaration of fault,” taking blame for the late filing of the expert declaration. The trial court denied the motion for relief under section 473(b).
The arguments in Kyle’s opening brief on appeal all concerned the trial court’s denial of relief under section 473(b). However, the court of appeal did not reach the merits because of a fatal error in Kyle’s notice of appeal. In his notice of appeal, Kyle checked the box indicating he was appealing from the “Judgment after an order granting a summary judgment motion,” and he identified the date of the judgment. The notice of appeal did not reference the order denying the motion for relief under section 473(b), even though that order was separately appealable (see General Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394).
The court concluded that, because Kyle appealed only from the judgment, it had “no jurisdiction to consider the propriety of the subsequent order denying Kyle’s motion to vacate the judgment.” Consequently, the court dismissed the appeal.
Some might think the result in Malbrue is overly harsh. Others might think the court of appeal’s decision is contrary to the rule that “[t]he notice of appeal must be liberally construed.” (See Cal. Rules of Court, rule 8.100(a)(2).) However, the rule of liberal construction “applies primarily . . . where the notice of appeal has misdescribed the judgment or order sought to be appealed from.” (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.) That is, the court may be lenient when “it is reasonably clear what appellant was trying to appeal from,” despite a poor description in the notice of appeal. (See Luz v. Lopes (1960) 55 Cal.2d 54, 59.) As another court put it, “[w]here several judgments and/or orders occurring close in time are separately appealable . . . each appealable judgment and order must be expressly specified” in the notice of appeal. (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.)
In Malbrue, there was no misdescription. Kyle clearly identified the judgment, yet challenged only a separate appealable order in his brief. The Malbrue court cited a case holding “it is well ‘beyond liberal construction’ to view an appeal from one order as an appeal from a ‘further and different order.’” (See Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47 [“The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.”].)
In hindsight, the appellant’s mistake in Malbrue may seem obvious. But it really is an easy error to make. The day after Malbrue was decided, another appellate decision was issued involving the very same mistake. In Manasserian-Virabyan v. Muradyan, Case No. B265877 (2d Dist., Div. 7, Dec. 15, 2016), the appellant’s opening brief challenged an order of dismissal and an order denying a motion for relief under section 473. However, the appellant did not list the second order on the notice of appeal and, consequently, the court of appeal found it lacked jurisdiction to review that order.
The opinions in Malbrue and Manasserian-Virabyan are unpublished and therefore not citable in California courts. They nonetheless offer an important lesson in appellate practice. A procedural slip-up may prevent your case from being decided on the merits. The safest course is to retain experienced appellate counsel as soon as you suspect there may be an appealable issue.
Cory Webster practices in appeals and business litigation at Enterprise Counsel Group in Irvine.