2011 California Rules of Court

Rule 8.104. Time to appeal

(a) Normal time

Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

(1)60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served;

(2)60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

(3)180 days after entry of judgment.

(4)Service under (1) and (2) may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under Code of Civil Procedure section 1010.6 and rules 2.250-2.261.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2007.)

(b) No extension of time; late notice of appeal

Except as provided in rule 8.66, no 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.

(Subd (b) amended effective January 1, 2007; adopted effective January 1, 2005.)

(c) What constitutes entry

For purposes of this rule:

(1)The entry date of a judgment is the date the judgment is filed under Code of Civil Procedure section 668.5, or the date it is entered in the judgment book.

(2)The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order.

(3)The entry date of an appealable order that is not entered in the minutes is the date the signed order is filed.

(4)The entry date of a decree of distribution in a probate proceeding is the date it is entered at length in the judgment book or other permanent court record.

(Subd (c) relettered effective January 1, 2011; adopted as subd (c); relettered as subd (d) effective January 1, 2005; previously amended effective January 1, 2007.)

(d) Premature notice of appeal

(1)A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment.

(2)The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.

(Subd (d) relettered effective January 1, 2011; adopted as subd (d); previously relettered as subd (e) effective January 1, 2005.)

(e) Appealable order

As used in (a) and (e), "judgment" includes an appealable order if the appeal is from an appealable order.

(Subd (e) relettered effective January 1, 2011; adopted as subd (f); previously amended effective January 1, 2005.)

Rule 8.104 amended effective January 1, 2011; repealed and adopted as rule 2 effective January 1, 2002; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2005, and January 1, 2010.

Advisory Committee Comment

Subdivision (a). Under subdivision (a)(1), a notice of entry of judgment (or a copy of the judgment) must show the date on which the clerk served the document. The proof of service establishes the date that the 60-day period under subdivision (a)(1) begins to run.

Subdivision (a)(2) requires that a notice of entry of judgment (or a copy of the judgment) served by or on a party be accompanied by proof of service. The proof of service establishes the date that the 60-day period under subdivision (a)(2) begins to run. Although the general rule on service (rule 8.25(a)) requires proof of service for all documents served by parties, the requirement is reiterated here because of the serious consequence of a failure to file a timely notice of appeal (see subd. (e)).

Subdivision (b). See rule 8.25(b)(5) for provisions concerning the timeliness of documents mailed by inmates and patients from custodial institutions. Subdivision (b) is declarative of the case law, which holds that the reviewing court lacks jurisdiction to excuse a late-filed notice of appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-674; Estate of Hanley(1943) 23 Cal.2d 120, 122-124.)

In criminal cases, the time for filing a notice of appeal is governed by rule 8.308 and by the case law of "constructive filing." (See, e.g., In re Benoit (1973) 10 Cal.3d 72.)