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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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Hello, I have another set of questions out to Lawtalk about

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Hello, I have another set of questions out to Lawtalk about an the timeframe for an appeal. Can you please look at the question trail? I'm not doubting what he is saying whatsoever but he keeps telling me mine is not an appealable order and I don't fully understand what he is saying by this or where to go from there. Please advise.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
I would prefer not to have to try to dissect the previous contributors' Q&A sessions. They're far from what a court record transcript looks like and so it's very difficult to follow the thought process. I will be happy to answer your question definitively -- or, if no definitive answer exists, to explain what I believe to be the correct answer and why.

But, you'll have to ask your question again from scratch.

Thanks in advance for your understanding and cooperation.
Customer: replied 1 year ago.

ok.


I had a hearing on 3/28/13 that resulted in a change of custody/visitation. After the hearing I was handed the minute order which is stamped "Received in the Drop Box" and dated March 28, 2013. The Findings and Order after Hearing was sent to me by Petitioner's lawyer with a court date "Filed" stamp of 5/16/13.


 


I never received service by the clerk or any party a document entitled "Notice of Entry of Judgment" or of a file-stamped copy of the judgment, showing the date of mailing.


 


 


Am I trying to see if I can file an appeal or not?

Expert:  socrateaser replied 1 year ago.
Sorry for the delay -- it's a tricky question, and I don't have enough information.

Exactly who handed you the yellow minute order copy?
Customer: replied 1 year ago.

My ex's lawyer. Someone in the courtroom handed them to him and he handed it to me and said "This is your copy."

Expert:  socrateaser replied 1 year ago.

Interesting.

Cal. R. Ct. 8.104(a)(1) requires an notice of appeal must be made no later than:

 

  • (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served;
  • (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service;

 

Now, had the judge's clerk personally handed you that yellow order, you would have been served on 3/28/2013, according to the Code of Civil Procedure, because "personal service" can be accomplished by handing the document to the party or witness.

 

But, if opposing counsel handed you the document, then you weren't served because the document was not entitled "Notice of Entry," nor was the copy of the judgment/order accompanied by proof of service.

 

Now, if the minute order expressly requires that opposing counsel prepare and serve a formal Order after Hearing, then you would not have been served until 5/16/2013 -- which would give you 60 days from that date to appeal. Cal. R. Ct. 8.104(c)(2) ("The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order")

 

But, if the minute order does not expressly require that opposing counsel prepare and serve a formal Order after Hearing, then you would have 180 days after 5/16/2013 to appeal. Cal. R. Ct. 8.104(a)(1)(C).

 

Hope this helps.

Customer: replied 1 year ago.

It's getting clearer but I'm still trying to piece this together. I sent you the verbiage from the minute order. Did you get that?

Expert:  socrateaser replied 1 year ago.
Nope.
Customer: replied 1 year ago.

Here's what it says:


 


Counsel for Pet. shall prepare a formal order and submit to apposing counsel for approval as to form within 10 days and opposing counsel shall review and apporve within 10 days, plus 5 if by mail; shall prepare a judgement and submit to opposing counsel for apporval as to form within 30 days and opposing counsel shall review and approve with 20 days, plus 5 days if by mail. Sanctions may be imposed for failure to comply.


 


His lawyer sent me something to approve but his letter sounded like if I didn't he would just file it. He sent it to the judge asking him to approve it. I then received the File Endorced copy (dated May 16) of the Findings and Order after Hearing.

Expert:  socrateaser replied 1 year ago.
Okay, we know that you weren't served by the clerk, because the clerk gave the minute order to opposing counsel. So, that removes option (a)(1)(A). And, we know you weren't given a proof of service by opposing counsel, so that removes option (a)(1)(B).

And, we know that the minute order instructs opposing counsel to prepare an order after hearing and serve it so that makes entry of the order 5/16/2013, which takes it back to option (a)(1)(B), but to the "notice of entry" clause which is how you were served.

Therefore, you have 60 days from 5/16/2013, to file the notice of appeal: Monday, July 15, 2013.

Hope this helps.
Customer: replied 1 year ago.

I was thinking about this and for the hearing before the trial, we received a continuance, and at that time "I am certain" his lawyer handed me my copy. After the actual trial, I was in such a state of shock that I can't recall exactly who gave me the minute order. Given that the minute order instructs opposing counsel to prepare an order after hearing, does this change my July 15th appeal date?


 

Expert:  socrateaser replied 1 year ago.
If the clerk handed you the minute order, then the clock started to run on that date. If opposing counsel or anyone else other than the clerk handed you the document, then you weren't served notice until 5/16/2013. The reason is simple: the clerk has no idea whether or not opposing counsel handed you the document. In fact, I doubt that opposing counsel knows, either. I certainly wouldn't remember that sort of trivial issue, if I'm handling a dozen different hearings during the same week.

The only provable notice of entry is the order after hearing served by opposing counsel, because not even you recall when you were served with the minute order.

Hope this helps.
Customer: replied 1 year ago.

I hear you saying that based on "provable" notice of entry, I am within my allowable time frame for appeal.


 


I feel I should adopt and stick to the idea that opposing counsel handed me the minute order and simply go forth with the appeal. Do you agree? Is there any other information you feel may be helpful to me in this process?


 


Thank you for your help, and for always presenting info in a logical way I can understand.

Customer: replied 1 year ago.

FYI...even my ex does not know who handed me the minute order. See his email below.


 


Melissa,


The only things I am aware of is the Judgement Order which you received the day of the trial (Don't know if Matt or if the Clerk handed it to you, but I think it was the clerk but not 100% sure), the findings and order after hearing which you were sent a couple copies of it (1 prior to it being filed for you to review and then 1 after it was filed, but not sure if another was sent to you or not), but other then that I am not sure. Are you missing something?
Expert:  socrateaser replied 1 year ago.
I feel I should adopt and stick to the idea that opposing counsel handed me the minute order and simply go forth with the appeal. Do you agree? Is there any other information you feel may be helpful to me in this process?

A: If it were me, I would take the position that the 5/16/2013 notice of entry is the effective date, and not even mention the issue surrounding the minute order, unless opposing counsel attempts to obtain a dismissal based upon a claim that you were properly served the minute order on an earlier date.

This entire exercise could turn what ought to be a straight forward appeal, into a question of what Rule 8.104 actually means. I would want to try to avoid that argument, and at this point, you don't know if opposing counsel will even consider your appeal as untimely.

The only proof that you were served the minute order by anyone is what each person recalls, and no one is certain -- though I can practically guarantee that opposing counsel will suddenly find that he has a precise recollection just as soon as he realizes there is an advantage to that recollection.

Like I said, the chance that I would remember handing you a minute order as part of a trial of one of my clients on a specific date and time is ridiculous. It would be like asking me what I color underwear I had on that day. I wouldn't have a clue -- unless there was some advantage in knowing.

Anyway, you have to make your own decisions about how you will proceed, but I think you may be opening up a big ol' can of worms with the who served what to whom issue, when there is already an order after hearing which everyone knows was served on a specific date, and from which an appeal time frame can be calculated.

Hope this helps.
Expert:  socrateaser replied 1 year ago.
Hello,

I notice that this question is still open. Do you have any further questions on this issue, or are we "all good?"
Customer: replied 1 year ago.

Hi, yes, we are "all good." I had some PC issues that kept me off of here. Like you said, I'm not going to open up the can of worms on the whom served whom & when scenario. I'm just going to file the appeal. I will be back another time to ask some questions on that.


One good thing about apposing conseling recalling or not / or getting in the mix is that he is no longer representing my ex. Ex may be able to dig up a retainer again, but possibly not as the last trial cost him well over 10K. Regardless, I am going to file the appeal it and hopefully I can afford an attorney if we get a new trial.


 


I do have one last question. For my last hearing date that I want to appeal, is there a way to get a copy of the transcript that was taken during the trial proceedings? I'm pretty sure there was a court reporter present.

Expert:  socrateaser replied 1 year ago.
When you file an appeal, you will have to "designate" the portion of the trial court record that you wish to use on appeal. At the same time, you will deposit fees with the court necessary to cover the production of a court reporter's transcript.

If you need a copy of a court hearing before you file the appeal and designate the record, then you can contact the court reporters office at the courthouse and request a transcript. It is not free.

See the court website for contact info.

Hope this helps.
Customer: replied 1 year ago.

If you need a copy of a court hearing before you file the appeal and designate the record, then you can contact the court reporters office at the courthouse and request a transcript. It is not free.

See the court website for contact info.


 


Yes, I need it bfore the hearing. I have a fee waiver on file with the court, do you have any idea if it covers a transcript? If not, I will pay for it, if I have to...hopefully it's not an outrageous fee.

Expert:  socrateaser replied 1 year ago.
I do not believe that any fee waiver for court transcripts is available to a pro per litigant at this time. See this link and ask the court reporters office.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34825
Experience: Retired (mostly)
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