Legal Question in Appeals and Writs in California

Your initial premise is incorrect. The trial court has jurisdiction until the Court of Appeal issues an order to hear your petition. Your other questions are confusing because it is not clear what order you are referring to in the question. The denial of the writ petition if not on the merits does not extend the time to appeal. Notice of appeal runs from a final order of the trial court. If the trial court's order requires some further action the time to appeal runs from notice to you of that action, I.e., the filing of a formal order, notice that judgment was entered. Since you indicate that the Court of Appeal took no action, the writ petition had no affect on the time to appeal. However, since you fail to posit what order the trial court entered it is impossible to determine how much time you have or had to appeal. Good luck!

Petitioning for a writ of mandate does not automatically stay proceedings in the trial court, even if you expressly ask for a stay. The Court of Appeal ("CoA") can order a stay, but unless and until that happens the petition will have no effect on the trial court's authority.

You haven't told us what type of order the trial court issued while your petition was pending. Most orders are not appealable. I can't say whether this one was, based on the limited information you've given us.

You also haven't told us whether the CoA denied your writ petition on the merits or issued a summary denial. Most petitions are denied summarily. That sort of denial would have no bearing on your appeal rights. A decision on the merits might, but that would depend on what it said.

Assuming that (a) the order was appealable, (b) the CoA did not issue a stay, (c) the CoA denied your petition summarily, and (d) your case was an unlimited-jurisdiction matter in a state Superior Court, the deadline for your notice of appeal has nothing to do with when the Court of Appeal denied your petition. It depends only on when the trial court's order was filed and on when you were properly notified of that order, either by a party or by the court clerk.

Your belief that the normal due date is 60 days after the trial court order was filed is not correct. The general rule is that you have 60 days from the date of *notice* of the order or 180 days from the date of the order itself, whichever comes first. But there are exceptions to this rule. So your deadline may or may not have been the 60th day after the order was entered, depending on what type of case this was and when you were notified.

The rules about how to give notice are also complicated. Documents that are intended to give notice often don't meet the requirements. When that happens, the 60-day deadline does not kick in and the 180-day deadline remains in place, unless proper notice is given afterwards.

That brings me to your question about the clerk in the CoA not dismissing your case. She has no authority to do that, though if she sees a problem she can point it out to the justices and let them decide what to do. The clerk in the *trial* court can reject a notice of appeal if it is clear that the deadline has passed, but that often is not clear due to the complexity of the rules. When there is room for doubt, the clerk will file the notice. So the fact that your notice made it past the clerks does not mean you're safe.

One of the next steps after filing a notice of appeal is to file a Civil Case Information Statement ("CCIS"). The CCIS is where you demonstrate both that the order you're challenging is appealable and that your notice of appeal was timely. The notice of appeal is not designed to provide this information, so the fact that it hasn't triggered any action by the CoA is quite normal. The hurdle you're worried about is still in front of you, and it would be a mistake to assume you've already cleared it.

The justices always scrutinize the CCIS to verify that an appeal was timely. If they think yours might not be, they will order you to explain why is. If it's clearly time-barred, they might dismiss it without asking you to explain your position. Alternatively, the other side could bring a motion to dismiss the appeal.

As you can see, your question is not an easy one to answer. The rules governing notices of appeal are much more complex than they should be. That leaves plenty of room for error. Even experienced attorneys are often tripped up by them, especially if their experience is primarily in the trial courts.

It can also be difficult to tell whether a particular order is appealable. Even where the rules provide a clear answer, some lawyers -- and many pro per litigants -- aren't familiar with the rules. That is another area where you may have gone astray.

You may want to discuss your case in detail with a lawyer who specializes in appeals. If so, feel free to contact me directly. I have over 20 years of appellate experience, and am certified as an appellate specialist by the State Bar of California's Board of Legal Specialization.

Good luck.