In August 2005, the 2nd District Court of Appeal dismissed an appeal as untimely because it had been filed more than 60 days after the Superior Court clerk mailed the parties documents constituting “notice of entry” of the court’s order. That “notice” triggered the 60-day time period for filing a notice of appeal set forth in Rule 8.104(a).

Now, a year and a half later, the Supreme Court has determined that those documents did not in fact satisfy the “notice of entry” rule and has reinstated the appeal.

In arriving at its decision, the Supreme Court came down squarely on the side of “form” and rejected any notion of substantial compliance with the rules as sufficient in this context.

The Supreme Court’s decision in Alan v. American Honda Motor Co. Inc., 40 Cal. 4th 894 (March 15, 2007), is of critical importance to appellate practitioners because it delineates when they must file notices of appeal.

In the absence of certain “post-trial” motions, the time for filing a notice of appeals is either 180 days after entry of the judgment or the appealable order or 60 days after the clerk mails or a party serves “notice of entry” of the judgment or the appealable order. The 180-day rule applies unless “notice of entry” has been mailed by the clerk or served by a party.

Although this rule appears plain on its face, the devil has always been in the details of determining what constitutes “notice of entry.” And determining the correct jurisdictional deadline is essential to preserving a right to appeal.

Let’s be precise: The 60-day rule is triggered in two ways: (1) by the clerk mailing the parties “a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment showing the date either was mailed”; or (2) by a party serving “a document entitled ‘Notice of Entry’ of judgment or a filed-stamped copy of the judgment, accompanied by proof of service.”

Both types of notice require either “a document entitled ‘Notice of Entry’ of judgment” or “a file-stamped copy of the judgment.” In the case of service by a party, the document served must be “accompanied by proof of service.” In the case of mailing by the clerk, the document mailed must show the date of mailing.

Alan involved notice by the clerk of an order denying a motion for class certification. On Jan. 2, 2003, the Superior Court clerk mailed two documents to the plaintiff in a single envelope.

The first document was entitled “STATEMENT OF DECISION RE: ALAN’S MOTION FOR CLASS CERTIFICATION,” and set forth the court’s reasons for denying the motion. It bore the Superior Court’s file stamp and concluded with the sentence, “Alan’s motion for Class Certification is Denied.”

The second document the clerk mailed was a minute order entitled “RULING ON SUBMITTED MATTER/MOTION FOR CLASS CERTIFICATION.” This document stated: “The Court, having heard argument in this Motion, and read and considered the papers, now issues its...’Statement of Decision Re: Alan’s Motion for Class Certification’ this date. Copies of this minute order and the Statement of Decision are sent via U.S. Mail on January 2, 2003, to counsel of record in envelopes addressed as follows.” The minute order bore the printed notation: “Minutes Entered 01/02/03 County Clerk,” but was not file stamped.

On Jan, 21, 2003, the defendant filed and served on Alan it’s own notice of entry of judgment. Alan filed his notice of appeal on March 6, 2003, 63 days after the Superior Court clerk mailed the statement of decision and minute order and 44 days after the defendant served it’s notice of entry.

The defendant moved to dismiss the appeal on the ground that the clerk’s notice under Rule 8.104(a)(1) had triggered the 60-day deadline and Alan’s notice of appeal was therefore untimely.

The Court of Appeal granted the motion to dismiss the appeal, holding that the minute order and the statement of decision read together satisfied Rule 8.104(a)(1). The court rejected Alan’s further argument the Rule 8.104 (a)(1) requires a single document that satisfies all of the rule’s conditions without reference to other documents.

The Supreme Court disagreed and reversed. In so doing, the court first considered whether it was the statement of decision or the minute order that constituted the “appealable order.” The court noted that a statement of decision is generally not treated as the appealable order when a formal order or judgment follows. As such, the court concluded that the minute order was the appealable order.

Then the court considered whether the clerk had mailed either of the two documents that trigger the 60-day rule. Because the clerk did not serve any document entitled “Notice of Entry,” the clerk’s mailing could not trigger the 60-day period unless it contained “a file-stamped copy” of the appealable order.

But the clerk’s mailing contained no such document. Although it contained a copy of the minute order, that order was not file stamped as required by Rule 8.104(a)(1) and therefore did not constitute a “file-stamped copy” of the appealable order. And, although the statement of decision was file-stamped, the document did not constitute the appealable order.

Accordingly, because neither document constituted a “Notice of Entry” or a “file-stamped copy,” the clerk’s mailing did not trigger the 60-day rule. The Supreme Court implicitly rejected the motion that the two documents could collectively constitute a complying notice.

Although this holding disposed of the case, nevertheless the court proceeded to address the closely related issue of whether Rule 8.104(a)(1) requires a single, self-sufficient document.

The Supreme Court held that a single-document construction was a more “literally correct” interpretation of Rule 8.104(a)(1). In addition, the court indicated that this construction was consistent with the Advisory Committee’s official comment on the rule.

Further, the court noted that Rule 8.104(a)(2) unambiguously permits a party to serve a separate proof of service, thereby indicating that the drafters “knew how to require a separate document (‘proof of service’) when that was their intention.” That Rule 8.104(a)(1) does not clearly permit a separate proof of mailing therefore suggests that a single document was intended.

The court acknowledged, however, that the single document may be more than one page. Thus, a file stamped copy of the judgment may be combined with a certificate of mailing in a single document.

Alan therefore unequivocally establishes two requirements for compliance with Rule 8.104(a)(1): document entitled “Notice of Entry” showing the date it was mailed or a file-stamped copy of the judgment showing the date it was mailed. Second, the clerk must mail a single, self-sufficient document that satisfies all of the rule’s conditions.

Although Alan involved a notice by the Superior Court clerk, the decision generally underscores the requirement of strict compliance with all of the notice provisions that trigger the 60-day filing deadline.

As the Supreme Court recognized, this is necessary because of the high stakes involved. In this regard, Alan aligned itself with Court of Appeal decisions requiring literal compliance with the formal requirements of Rule 8.14. See e.g., Sunset Millennium Associates v. Le Songe, 138 Cal. App. 4th 256 (2006) (“Within reason [former] rule 2 is read literally.”); In re Marriage of Taschen, 134 Cal. App. 4th 681 (2005); 20th Century Ins. Co. v. Superior Court, 28 Cal. App. 4th 666 (1994).

The court noted the line of cases applying the “older rule” that technical defects in a notice of entry are excusable unless they preclude actual notice. (e.g., In re Marriage of Eben-King, 80 Cal. App 4th 92 (2000)), but refused to apply this more relaxed rule to Rule 8.104.

Accordingly, where it appears that a clerk’s notice has failed to strictly comply with the requirements of Rule 8.104(a)(1), parties who wish to start the clock on a potential appeal should serve their own notice of entry of judgment that complies with the requirements of subdivision (a)(2). And even though the Supreme Court has provided some much needed clarity to this troubling area, appealing parties would do well to err on the side of caution and file the notice of appeal within 60 days of mailing of notice by a party, even if there are questions about its adequacy.

It is certain that Alan is not the last work on this topic and that questions of compliance will continue to arise.

Margaret Grignon is a retired justice of the California 2nd District Court of Appeal and a member of Reed Smith’s appellate group in Los Angeles. Zareh Jaltorossian is a Los Angeles based associate in the group.