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Print Page “Better Late Than Never”
Not in California

by Ron Davis

Reliance on the time-worn adage “better late than never” has cost a California shopping center tenant a chance of winning a dispute with the center’s owner.

The shopping center, located in the San Jose area, had leased space to the tenant to operate a hair-dressing salon. But unsuccessful efforts to resolve differences between the tenant and the center’s owner resulted in the tenant’s suing the owner.

A California jury eventually decided in favor of the center’s owner. That prompted the tenant to appeal the jury’s verdict.

California law strictly regulates the filing of a notice to appeal an unfavorable judgment. Although the time constraints for such action have recently changed, at the time of the ruling against the tenant, he had 60 days to file his appeal. Tardiness in filing results in appellate-court rejection.

Attorneys for the center’s owner duly served by mail a document entitled “Notice of Entry of Judgment.” (Along with that document were a copy of the judgment that the clerk of court had previously mailed and a “proof of service.”)

The tenant waited, however, until the deadline approached before reacting to the judgment against him. At the time he finally filed a notice to appeal, it went out the day after a Memorial Day holiday, but one day late—and four days after the mailing of a file-stamped copy of the judgment.

The tenant had apparently filed after the filing deadline and was therefore late. He responded that the file-stamped copy of the judgment mailed did not comply with technical-service requirements. There was no signature on the document, he pointed out, and the notice was in small print. Therefore, he added, the document did not comply with the rules governing the filing regulations.

Importantly, he said, his attorney never received a copy of the judgment mailed by the clerk of court.

Finally, he pointed to the legal principle that the courts should try to resolve any uncertainty or ambiguities in legal rules in favor of preserving the right to appeal.

A California appellate court rejected the tenant’s argument, but not without due consideration. Explained the judge, “We do not relish forfeiture, and we are not unsympathetic to the sharp consequence of dismissal of an untimely appeal, particularly in these circumstances on which [the tenant’s lawyer] avers that he did not receive the judgment mailed by the clerk of court. But because of the jurisdictional nature of the deadline for filing a notice of appeal, we lack the discretion or authority to extend or avoid it…. We accordingly must dismiss the appeal as having been untimely filed.”

(2010 WL 2638749 [Cal.App.6 dist.])

Decision: July 2010
Published: September 2010

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