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Gedrven

Junior Member
Trial happened on 12/6/10. Appeals documents sent by Certified Mail on 1/4/11. Arrived 1/7/11, one day after the 30-day deadline. Appeals clerk says it was filed in an untimely fashion. I say I've done due diligence in mailing on time (Certified, at that), and can't be held responsible for USPS delays. Nevermind that this particular 30-day period included the major holiday season and amounted to less than that, in business days. I referenced rule 8.25(b)(3) to the clerk:

(3)A brief, a petition for rehearing, an answer to a petition for rehearing, a petition for transfer of an appellate division case to the Court of Appeal, an answer to such a petition for transfer, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not expired on the date of:

(A)Its mailing by priority or express mail as shown on the postmark or the postal receipt; or
And they tell me that the appeals documents I sent in are "original proceedings". I thought that's what the trial itself was?! I feel cheated by a court that bungled the trial itself and now is stonewalling my attempts to appeal it. Could anyone suggest any remedy I might have?

Thanks.
 


tranquility

Senior Member
The court of original jurisdiction is the court which has jurisdiction over a case unless a valid appeal is filed. A valid petition to appeal *transfers* jurisdiction to the appellate court. Without a valid petition, an appellate court has no power to do anything about a case. I am uncertain as to if any court has the power to waive the statutory time limit as it is not at the discretion of the court, but an actual rule to establish jurisdiction of a court.

While there is always some avenue to explore in a Civil Procedure issue, I think it is quite likely that the clerk had to have the petition in his possession within 30 days *and* if it wasn't, there is nothing anyone can do about it.

Info edit:
I accepted the OP saying it is a 30 day limit. I am uncertain of this.
 
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Tex78704

Member
You cite Rule 8.25(b)(3) as applicable to your situation, when in fact it appears Rule 8.25(b)(2) applies to your case

Rule 8.25(b)(2) Unless otherwise provided by these rules or other law, a filing is not timely unless the clerk receives the document before the time to file it expires.
Your filing failed to meet the requirement of Rule(b)(2).

Rule 8.25(b)(4)The provisions of (3) do not apply to original proceedings.
Rule (b)(4) states Rule (b)(3) does not apply to original proceedings. This is because of what was stated above by Tranquility on original proceedings. Once the court of appeals has jurisdiction over a case, Rule (b)(3) would apply only under the specific circumstances it cites. And none of these apply to your filing.

The above statute is pretty specific and the appeals court has no discretion to waive or circumvent this, with the exception of Rule (b)(5) for inarcerated inmates.
 
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Gedrven

Junior Member
Thanks for the responses. I was hoping to hear of the existence of some remedy for USPS not delivering documents on time, other than the court simply stating "tough s--t". Is there any judicial agency, one that has oversight over court rules, for instance, that I could bring this matter to?
 

tranquility

Senior Member
It was your responsibility to get it to the court in a timely manner. Few people would be so silly as to mail an appeal to the court. There are services which will hand carry it there if you could not do it yourself.

There is no court oversight as this is not a court rule issue, but a STATUTE which gives the appellate court JURISDICTION. Without jurisdiction, the appellate court has no power to hear your complaint. Your only potential remedy is to ask the court of original jurisdiction to reconsider its judgment.

From a California Supreme Court case (I won't cite as I'm not using it as precedent, only for the discussion--where you can look up the precedent.) on a related matter:
It is undisputed that were this a conventional appeal, the answer to this question would be an emphatic "no." [3] Conventional appeals have long been governed by the "fundamental precept 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 [125 Cal.Rptr. 757, 542 P.2d 1349].)

The reasons for this rule were succinctly stated by this court in Estate of Hanley (1943) 23 Cal.2d 120 [142 Cal.Rptr. 423, 149 A.L.R. 1250]. "In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal .... These procedural time provisions, however, become effective after the appeal is taken. The first step, taking of the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court." (Id., at p. 123.) In addition, "of particular importance is the fact that the security of rights of contract, titles to property, and the status of persons rest upon certainty in the finality of judgments occasioned by the lapse of the statutory time for the taking of an appeal." (Id., at pp. 123-124.)

Accordingly, in conventional appeals it has long been the rule that "n the absence of statutory authorization, neither the trial nor appellate courts may extend ... the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver. [Citations.] If it appears that [an] appeal was not taken within the [statutory time], the court has no discretion but [to] dismiss the appeal ...." (Estate of Hanley, supra, 23 Cal.2d at p. 123 [italics added]; accord Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 674.) fn. 6
 

Tex78704

Member
Although judgment was 'rendered' on the 12/6 trial date, the clock on an appeal generally starts ticking once final judgment is 'signed'.

If in this case final judgment was signed even one day after the trial date, it is possible Gdreven's appeal filed on 1/7 may have been timely filed.
 

tranquility

Senior Member
Hmm..I would think that "signed" is "rendered", but could be wrong. I would say "entered" is something a clerk might do (after the signing/rendering) before the appellate clock started ticking.

Info edit:
However, I am completely uncertain as to the 30 days.
 
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Tex78704

Member
Hmm..I would think that "signed" is "rendered", but could be wrong. I would say "entered" is something a clerk might do (after the signing/rendering) before the appellate clock started ticking.
This is basically correct. Signed is after the fact of rendered, so in a manner of speaking "signed" is "rendered". The clerk does "enter" judgment, but after the judge signs an Order to be entered by the Clerk.

Rendition is a judicial act by a court in pronouncing the sentence of law based upon the facts in controversy. This usually occurs at the conclusion of a trial.

Entry of Judgment occurs after the rendition of judgment and is a ministerial act that consists of 'recording' the ultimate conclusion reached by the court in the action and providing concrete evidence of the judicially imposed consequences. And this is by means of a signed Order.

The day the Final Order is signed by the judge and entered (not when the judge first renders judgment) starts the appellate clock ticking. A simple judgment might be done and over with right away, some take longer for entry of judgment.

It's not uncommon for a lag of days to months between rendition and entry of judgment.
 
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Gedrven

Junior Member
Is sending an appeal Certified mail sillier than driving from Montana to California in the middle of winter just to submit a couple of documents? I didn't mail it just because I was lazy; I was two states, one timezone, and a lot of snow and ice away. We have a postal service for a reason, silly. :p

The text of CR-142, the notice of appeal form, says "...30 days after the trial court issued the judgment...". Would "issued" mean that I was given some official form indicating the verdict?

I timed the trial to take place as I was leaving California, so I haven't been in CA since, nor have I checked my mail. If they mailed me the official verdict even the next day, would that count as it being issued later than the date of the trial itself?
 

tranquility

Senior Member
Is sending an appeal Certified mail sillier than driving from Montana to California in the middle of winter just to submit a couple of documents? I didn't mail it just because I was lazy; I was two states, one timezone, and a lot of snow and ice away. We have a postal service for a reason, silly.
Apparently, you have not heard of filing services. You fax or e-mail the papers to them and they get them to the clerk. Silly.

As to the rest, the joys of pro per. There are many interactions and cases which describe many things. That is why professionals get paid so much.

Still, civ pro is hard. Since it seems you have no avenues open to you by your error, I'd pour over the books to see if you can find something which supports your position--or ask the original judge to reconsider.
 

CourtClerk

Senior Member
Is sending an appeal Certified mail sillier than driving from Montana to California in the middle of winter just to submit a couple of documents? I didn't mail it just because I was lazy; I was two states, one timezone, and a lot of snow and ice away. We have a postal service for a reason, silly. :p

The text of CR-142, the notice of appeal form, says "...30 days after the trial court issued the judgment...". Would "issued" mean that I was given some official form indicating the verdict?

I timed the trial to take place as I was leaving California, so I haven't been in CA since, nor have I checked my mail. If they mailed me the official verdict even the next day, would that count as it being issued later than the date of the trial itself?
So if you were 2 states, one time zone and a lot of snow and ice away to get it to the court on time, then why didn't you expect that that USPS would have the same issues with the same weather?????

And you do realize that CA courts allow for fax filing, right?
 

Tex78704

Member
If judgment was both rendered and entered on 12/6 your case IS OVER. The judgment is final, your time to appeal was missed, and the judge can no longer reconsider your case.

Your ONLY chance to recover from this is if you find that judgment was ENTERED AFTER 12/6. And to determine this for sure, you either need a copy of the signed and dated final judgment in your hand, or you need to contact the clerks office to get this information.

The DATE final judgment was SIGNED and ENTERED is critical. If you are having a difficult time understanding this, you are wasting your time filing a pro se appeal.
 

Gedrven

Junior Member
So if you were 2 states, one time zone and a lot of snow and ice away to get it to the court on time, then why didn't you expect that that USPS would have the same issues with the same weather?????

And you do realize that CA courts allow for fax filing, right?
No, I didn't realize that. I thought that the original documents needed to be mailed in; no copies, no faxes. A fax would've of course been far less trouble.

As for transportation delays, I had assumed, based on precedent (like filing taxes by 4/15), that the date of mailing counted as the date of filing - postmarked on the 4th, considered filed on the 4th.

Sounds like my only avenue is to see when judgment paperwork was signed and all? I'll go request copies of those documents, then. Thanks.
 

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