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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12235
Experience:  Attorney experienced in all aspects of family law
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Brandon: on the timeliness of a 1008(a) motion --- it specifies

Customer Question

Brandon: on the timeliness of a 1008(a) motion --- it specifies ten days from service of notice of entry. However, in family law cases the clerk serves the endorsed filed orders with a POS - you rarely see a party filing a notice of entry - the question is: if the clerk serves an endorsed filed copy with a POS of mailing - does that trigger the running of the ten days - or, as here, does it run if one of the party's files and serves a NOTICE OF ENTRY OF ORDER with a properly prepared POS? The importance is monumental because we intend to appeal and would like to have the extension given - but if the 1008(a) is not "proper" there is no extension.
Submitted: 1 year ago.
Category: Family Law
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Brandon M. :

Hi, can you see this?

Customer :

yes

Brandon M. :

Great. Thank you for your question.

Brandon M. :

I need a bit of clarification. First, you said that you intend to appeal... a motion to reconsider (a 1008 motion) isn't technically an appeal. When you say that you intend to appeal, are you referring to the motion to reconsider, or do you mean that you plan to later go through a formal appeal?

Customer :

Plan to later go through a formal appeal ( assuming the court denies our 1008(a)

Brandon M. :

Thanks.

Brandon M. :

I am just hoping to better understand the situation. I have just a few more (hopefully) quick questions.

Customer :

Plan to appeal the order. Will appeal the denial of the 1008(a) as well, if it is denied. As I understand it, a 1008(a) motion is actually appealable...so long as the underlying order is appealable.

Brandon M. :

Can you just briefly describe to me how this played out procedurally? I'm getting a bit stuck because your question was phrased as an "or" question, but it doesn't necessarily have to be an "or".

And yes, a 1008(a) motion is itself appealable.

Customer :

Hearing on motion to modify post judgment SS, matter was submitted. May 16, 2013, court clerk sends the parties endorsed filed copy of the order with POS. Thereafter, on June 18, 2013, one of the parties sends out a formal NOTICE OF ENTRY OF ORDER. Question is when does the ten days for 1008(a) begin...when the court mailed or when the party mailed NOTICE OF ENTRY OF ORDER?

Brandon M. :

That is pretty unusual that a party would file a notice of entry of order--you're definitely right about that. Typically, the 10 day time frame to file a 1008 subd.(a) motion would be triggered by the clerk serving the endorsed filed order (with or without a POS). But I'm wondering if there was some sort of defect when the clerk served the copy of the order. Do we have any idea why the party subsequently mailed the notice of entry of order?

Customer :

Unfortunately no defect in clerk's mailing, not even a wrong zip code. Yes, we do have an idea why the subsequent NOTICE OF ENTRY OF ORDER was sent..... the reason is that (1) the party wanted to extend the ten days beyond the clerk's service -if, in fact, the clerk's service triggered the 10 days; and, (2) the party wanted to trigger the ten days ...

Brandon M. :

I see. Well, every circumstance is different, so it might be possible in any given case to argue that a court clerk's service of a written, entered order of the court does not constitute notice of that written, entered order of the court, but that's a potentially very difficult argument.

Brandon M. :

Ordinarily, for purposes of a motion for reconsideration, service of the order itself constitutes notice.

Brandon M. :

So I'm not going to say that there is no way the circumstances could be interpreted to the contrary in your case--as you are probably aware, the law can be somewhat fuzzy when applied to a specific situation--but there would generally be too late 10 days after the clerk's service.

Customer :

Are there any cases that you are aware of that discusses the situation of when the ten days is triggered in a family law case. Also, as I understand it, in civil cases, the court's mailing of an endorsed filed copy of the order with POS does NOT trigger the ten days.. why would you think it triggers it in a family law case?

Customer :

1008(a) specifies that it runs from service of NOTICE OF ENTRY. Is it your opinion that we are to ignore the wording ?

Brandon M. :

CCP 1008 actually has pretty extensive published case law. I can probably give some citations that discuss the 10 day period, but it may not be exactly on point. I would have to do some research and get back to you for that.

Brandon M. :

I'm not saying to ignore the wording, but if you've ever considered what "notice" is, it isn't necessarily confined to documents with the word "notice" in the title. Using my own personal experience for examples, I've seen the court interpret things that clearly are not notice as notice because it has discretion to do so. Most commonly, I have on numerous occasions seen the court interpret motions as both the motion and notice of motion--typically to accommodate the oversight of a pro per.

Brandon M. :

I'm just using that as an example. In my quick examination, I don't see any case law that addresses your specific matter, which just means that I am not seeing a situation where the question has arisen, it was appealed to the appellate courts, and the appellate courts chose to publish their opinion (in approximately 95% of cases, there is no publication). Nothing would prevent you from filing the 1008 subd.(a) motion anyway and arguing that the service does not constitute a "notice", nor would anything prevent you from appealing an unfavorable ruling, but I am advising you to set your expectations low if you follow that course of action.

Brandon M. :

Does that make sense?

Customer :

That makes sense, but does not answer the question or address the problem. You see, if we think we have it right that the NOTICE OF ENTRY triggers the ten days and believe we have the extension to file the appeal and then do not file the appeal until after the 60 days runs on July 15, 2013, but before extension runs, we are taking a huge risk because if we have it wrong about the 1008(a) timing, then the 1008(a) is deemed invalid. Since only "valid" 1008(a)'s are eligible for extensions, the appeal will be dismissed with prejudice as being untimely. So, really need a definitive answer or some case law or something

Brandon M. :

The initial 60 day deadline to appeal a civil matter after judgment is to file notice of the appeal. The appellate brief itself does not have to be filed at the time of the notice. Furthermore, an extension to file the brief may be granted for good cause. Furthermore, the court's finding in a motion to reconsider can be appealed separately from an appeal of the underlying judgment or order. Furthermore, if a related matter arises, the appellate court can be motioned (usually with the cooperation of the opposing party, since it saves everyone time and money) to combine related matters on appeal. It would be irresponsible of me to tell you that your motion to reconsider will be defective because I have only one piece of one half of a case that I have not examined or to advise a course of action without the opportunity to thoroughly examine your priorities and interests like I would be able to do during an in-person interview. However, I can say that if your goal is to maximize your opportunity to have the matter examined under a motion for reconsideration while preserving your right to appeal both the underlying order/judgment and the 1008 subd.(a) motion itself, the "safest" course of action would be to appeal the underlying order/judgment and immediately file a motion for reconsideration--those matters can progress concurrently. If the motion for reconsideration is granted, the appeal would likely be moot and you can withdraw the appeal. If the motion for reconsideration is not heard by the time your opening brief comes due (doubtful), you can request an extension. If the motion for reconsideration is denied, you can appeal the motion for reconsideration order separately and/or request amendment of the original appeal to include the motion for reconsideration as well.

Brandon M. :

I hope I conveyed that with a respectful tone. Sometimes, tone can be lost in print since we cannot hear each other's voices or see each other's facial expressions. Let me know if further clarification is needed. Thanks.

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