Tuesday, February 23, 2010

Appeal Clock Starts with Notice PLUS Proof

The Fifth DCA reminds us that "strict compliance with the provisions of [Rule 8.104 governing the start of the time to appeal] is required" in Thiara v. Pacific Coast Khalsa Diwam Soc'y, F055729.

If the rule says the clock starts with service of a notice of entry with a proof of service, then the proof of service isn't optional.  A cover letter is not just as good.

The court held "a notice of entry or file-stamped copy of a judgment served by a party will not trigger the 60-day period unless it strictly complies with the provisions of rule 8.104(a)(2), including the requirement that it be accompanied by proof of service." 

"We do not believe a party should be required to speculate whether a cover letter accompanied by a copy of a judgment mailed to the party’s attorney was intended to or did constitute a a ‘"Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service,' sufficient to commence the running of the time for filing a notice of appeal under rule 8.104(a)(2)."