Appealability, Deadlines: Plaintiff’s Appeal Of An Attorney’s Fee Grant Motion Was Untimely, Resulting In A $64,350.30 Fees Order Standing As Viable Without Any Review

Appeal Was Electronically Received By The Court One Minute Late, Which Made It Untimely—So, Allow For Some Electronic Delay Transmission Issues When Filing An Appeal.

            Although unpublished, the lesson from McKenna v. Sony Pictures Entertainment, Case Nos. B304256/B310814 (2d Dist., Div. 5 Feb. 15, 2023) (unpublished) is to not push the 11:59 p.m. electronic filing deadline for superior court documents, especially with respect to a notice of appeal.  If the document is not received until 12:00 a.m. the next day, it could well be found to be untimely by a day.

            Plaintiff lost an attorney’s fees motion to the tune of $64,350.50 (inclusive of $9,427.50 for “fees on fees”) because the lower court determined defendant prevailed on a SLAPP motion as well as under Civil Code section 3344.1 (fee-shifting provision in a deceased personality name/likeness case involving deceased actor Christopher Jones).  Defendants served a notice of entry, which triggered a 60-day deadline from which to appeal the fee order.  Plaintiff encountered some electronic filing delays such that the appeal was file stamped at 12:00 a.m., one minute after the deadline such that the appeal was late by one day.  (Plaintiff visited Nationwide Legal at 11:42 p.m., but the electronic transmission issue did not get the document to the court—received by it--until 12:00 a.m., although the deadline for timely filing was 11:59 p.m. the day before, all in line with CRC 8.77.)

            The appellate court dismissed the appeal as untimely.  It did not believe that a slow connection was a failure in the electronic transmission for purposes of allowing for leniency under CRC 8.77(d).  The CRC deadline language talks about receiving the document by 11:59 p.m., not submitting by that time.  Beyond that, the notice of appeal was insufficient in failing to specify the order or judgment from which plaintiff was appealing. 

            Good electronic transmission lessons are taught in this opinion:  upshot, do not crowd electronic filing of a notice of appeal and check the right boxes in the Judicial Council form or specify the orders/judgments being appealed in a specially-crafted notice of appeal.