City of Calexico v. Bergeson - D076963 – Partially published

In City of Calexico v. Bergeson (Calexico) the appellate court (Justice Cynthia Aaron) dismissed an appeal as untimely. 

Under the Rules of Court, a party must file a “notice of appeal” within 60 days of the trial court clerk mailing “a document entitled ‘Notice of Entry’ of judgment" or "a filed-endorsed copy of the judgment.”  (Cal. Rules of Court, rule 8.105(a)(1)(A).)

But what qualifies as “the judgment”? The answer—according to every court clerk that I have dealt with—is a document that says “JUDGMENT” on it.[1]  But technically they are wrong.  According to the Enforcement of Judgments Act a “Judgment” can mean a “judgment, order, or decree entered in a court of this state.”  (Code Civ. Proc., § 680.230.)  As explained by the courts of appeal, a judgment can be any order that completely disposes of all of the claims between two parties and contemplates no further action.  So, a judgment does not need to be entitled a “judgment.”  (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1074.)  This flexible approach allows an appeal to go forward without delay.  (Ibid.)

But as in Calexico, courts also apply this rule as a trap to deny appellate review.

In Calexico, on September 24, 2019, the trial court denied all of the parties’ claims for relief in a “Ruling and Order on Writ of Mandate.”  The City then filed a proposed “judgment.” In November 21, 2019--less than 60 days after the "order"--the superior court signed the “judgment”  that “reiterated” the same result.

The City then filed a notice of appeal in January 2020.  The notice would have been timely if the “judgment” signed November 21, 2019, was "the judgment."  But, the court of appeal held the September 24 “order” was actually a “judgment” and the November 21 judgment was meaningless.

What is the benefit of denying the City its right to have its appeal?  The justices and their clerks can avoid some work.  You might think there is some other goal.  Would it encourage appeals to move faster if the notice must be provided sooner? No.  The courts regularly grant months of additional time for parties to file briefs and then, the justicies don’t review the briefs for months or years.  Might the court be compelled to act this way by the State constitution, or a Legislative enactment? No.  There is no such command.

Rather, the basis for this result is the judicially invented idea that a notice of appeal “vests jurisdiction in the appellate court” and that an untimely notice is ineffective to provide jurisdiction to the appellate court.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666, citing to In re Hanley's Estate (1943) 23 Cal.2d 120, 122, citing to Code Civ. Proc., § 939.)[2]

Even assuming the correctness of the prior cases, Calexico extends this concept too far.  Regardless of whether the first order was a judgment or not, the trial court executed a second document as a "judgment."   

Even if the "second judgment" was substantively identical, the trial court entered that judgment when it had the authority to do so.  There is nothing in the Rules of Court or a statute that deprives the a trial court of its authority over the action to timely enter a second/amended/updated/refreshed judgment. There is no “jurisdictional” requirement for the court of appeal to deny a party the right to appeal from the most recently entered judgment.

Calexico relies heavily on Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 581.  In Laraway, “After the time within which to appeal [a] final, appealable order had passed, the parties caused the trial court to enter a judgment to the same effect as the order, and then both petitioner and respondent purported to appeal or cross-appeal from that judgment. Because the parties did not file a timely notice of appeal from the appealable order" the court held it "must dismiss the appeal.”

Laraway can be distinguished on its facts. In Laraway, after the time to appeal had passed, the trial court arguably no longer had authority to amend the judgment, so the second order or judgment could not reanimate the judgment.  But in Calexico, the “judgment” document was entered while the trial court still had authority over the case.  For example, upon proper application, the trial court could have entered an order for a new trial or vacating the judgment.  Thus, when the trial court in Calexico issued its “judgment”—even if unnecessary or duplicative—it was within its power to do so, and the parties were within their power to appeal the judgment as issued.

Both Laraway and City of Calexico v. Bergeson assert, “The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision.” 

But this is an “argument from absence” that goes both ways.   The Rules of Court also do not provide that once a judgment is entered, the time to appeal cannot be “restarted or extended” by filing a subsequent judgment during the time the trial court still has jurisdiction.

The courts created confusion as to when the City needed to file a notice of appeal by executing a second judgment.  There no statute or rule that requires courts to punish a party for the court's own error.

In the absence of a written rule or statute pointing one way or another, it is simply a choice by the court of appeal to deny the City its right to appeal.

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[1] For example, a clerk will simply not issue a writ of execution in the absence of a document titled “JUDGMENT.”  As a practical matter, many attorneys learn there is a difference between an “order” and a document stating “judgment.”

[2] As background, when courts use the phrase “lack of jurisdiction,” they usually refer to two different concepts. A lack of “fundamental jurisdiction” is the absence of power to hear or determine the case; doctrines of waiver, estoppel, or consent cannot create jurisdiction.  Sometimes an appellate court may say a trial court acted “in excess of its jurisdiction,” which can simply mean that it did something that was not allowed by the law.  (See, e.g., Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339–340.)  For example, a statute of limitations may be "mandatory" in the sense that the court may not excuse a late complaint on grounds of mistake, neglect, or the like but it is not "jurisdictional" in the fundamental sense because the defense can be waived if not timely raised.  (Id. at p. 341.)  This was the point of one dissent in In re Hanley's Estate (1943) 23 Cal.2d 120, 134 (Carter, J., dissenting), pointing out the deadline for appeal (provided in former Code Civ. Proc., secs. 939, 940) does not concern “fundamental” jurisdiction, but is jurisdictional only in the sense that an untimely appeal is subject to dismissal:  “Hence, an objection based upon irregularities in the procedural jurisdiction may be waived or the party estopped to assert them. It does not consist of consenting to jurisdiction over the subject matter.”  (Ibid.)  Of course, this was the dissent.

But Section 939 was repealed.  Section 939 required that an appeal shall be taken within 60 days after the entry of judgment.  But Section 939 was repealed by Stats.1945, c. 40, p. 359, § 16. Section 936 was amended to read “A judgment or order, in a civil action, except when expressly made final by this code, may be reviewed as prescribed in this title and in rules adopted by the Judicial Council, except as otherwise expressly provided.”  Section 936 was later repealed when Title 13 was replaced and Section 901 now likewise states, “The Judicial Council shall prescribe rules for the practice and procedure on appeal not inconsistent with the provisions of this title."

Thus, any statutory command regarding the timeline for an appeal was removed.  Still, courts continued to apply the “jurisdictional” standard without mentioning the change:  “we have steadfastly adhered to the fundamental procept that the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.”  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.)  As the dissent noted to that decision, “The short answer to such legal pedantry is that the time limit on filing a notice of appeal is only as jurisdictional as we want it to be. No constitutional provision, statute, or rule declares the limit to be jurisdictional.”  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 (Tobriner, J, dissenting).)  Of course, I find these dissents far more persuasive than the majority hand-waving.

All of this is to say that the “jurisdictional” argument has a dubious origin and there is currently no constitutional or clear statutory commend that would deprive an appellate court of the ability to hear an untimely appeal (if there ever was).  Yet, California courts still consider compliance with the rules of court to be “jurisdictional” in some fundamental sense without acknowledging the foundation of the “jurisdictional” rule had been removed.