Respondents move to dismiss this appeal as untimely. The notice of appeal was filed in the superior court more than 60 days after notice of entry of judgment was served upon appellants.
Appellants oppose dismissal on the grounds that they made a timely attempt to electronically file the notice of appeal. With the advent of electronic filing, two rules of court were enacted that arguably shelter (some) tardy notices of appeal from the jurisdictional deadline. (Rules 2.259(c) [“If a technical problem with a court’s electronic filing system prevents the court from accepting an electronic filing . . . the court must deem the document as filed on that day”], 8.77(d) [if “good cause” is shown based on “a failure at any point in the electronic transmission and receipt of a document, . . . the court may enter an order permitting the document to be filed nunc pro tunc”].)
A series of questions not yet answered in the case law present themselves: (1) does either (or both) rule apply to notices of appeal; (2) if so, which court (i.e., the trial court or the court of appeal) determines whether relief is provided to the appellant; (3) what burden of proof applies to factual determinations under the applicable rule or rules; and (4) does the evidence in this case justify providing relief under the applicable rule or rules?We conclude: (1) both rules potentially apply to a notice of appeal, but only rule 8.77(d) is invoked by appellants; (2) a motion under rule 8.77(d) must be filed in the appellate court; (3) a party seeking relief under rule 8.77(d) must demonstrate “good cause,” which includes a preponderance of the evidence that an attempt to electronically file the document was made prior to the expiration of the deadline and that diligence was shown in promptly filing the notice of appeal after the failed attempt; and (4) appellants have not met that standard in this case.
[Update: The MetNews has C.A. Sets Rules for Relief Where Appeal Notice Filed Late]
For an unrelated unpub'd dismissal, see here.
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