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Silverbrand v. County of Los Angeles

April 23, 2009


Ct.App. 2/8 B176239 Los Angeles County Super. Ct. No. MC 014605. Judge: Frank Y. Jackson.

The opinion of the court was delivered by: George, C. J.

The prison-delivery rule - as most recently articulated by this court - provides that a self-represented prisoner's notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court,*fn1 the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail. (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner's filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, "ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined." (Jordan, supra, 4 Cal.4th at p. 119.) It also "furthers the efficient use of judicial resources by establishing a 'bright-line' test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner's notice of appeal was delivered to prison authorities 'sufficiently in advance of the filing deadline' to permit the timely filing of the notice in the county clerk's office." (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals. Self-represented prisoners - who can file a notice of appeal only by delivering it to prison authorities for mailing - should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued. Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency. Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

In this case, the trial court entered summary judgment against plaintiff, a state prison inmate, on the ground that plaintiff's medical malpractice lawsuit was barred by the statute of limitations. Plaintiff properly delivered a notice of appeal to prison authorities before expiration of the 60-day deadline for appealing this judgment, but the notice was not received by the superior court clerk until two days after the last day to file a notice of appeal had passed. The Court of Appeal, believing it was precluded by the rules of court from applying the prison-delivery rule to a civil case, dismissed plaintiff's appeal as untimely. We conclude that the judgment of the Court of Appeal should be reversed and the matter remanded for further proceedings.


The relevant facts are undisputed and are taken from the Court of Appeal's opinion. Plaintiff has been a state-prison inmate since 1994. At all relevant times, he has been confined to the California State Prison in Los Angeles County. In March 2003, he filed a medical malpractice suit against Los Angeles County's High Desert Hospital, the prison, and several medical-care providers at both institutions. The hospital defendants moved for summary judgment based upon plaintiff's alleged failure to timely file the complaint within six months of the county's rejection of the claims he had submitted pursuant to Government Code section 945.6, subdivision (a)(1). The trial court granted the hospital defendants' motion for summary judgment in early March 2004, and entered a judgment in defendants' favor in mid-March 2004. Defendants served plaintiff with notice of entry of judgment on April 14, 2004.*fn2

Plaintiff appealed from the judgment entered against him by sending a notice of appeal to the Los Angeles County Superior Court by means of the United States mail. A proof of service attached to the notice of appeal states the notice was placed in the mail at "California State Prison - Los Angeles County" on June 13, 2004. However, the notice was not stamped "filed" by the court clerk until June 16, 2004.

Defendants moved in the appellate court to dismiss plaintiff's appeal as untimely, arguing it was required to be filed with the court clerk by June 14, 2004, but was filed two days late.*fn3 In opposition to the motion to dismiss, plaintiff submitted a declaration stating that he handed the notice of appeal and copies to a correctional officer in plaintiff's prison unit on the evening of June 13, 2004 - one day prior to the filing deadline - in envelopes that were correctly addressed with full postage affixed, the manner prescribed for dispatching legal mail from the prison. He argued that under the prison-delivery rule, the notice of appeal should be deemed constructively filed at the time he handed it to prison authorities and that the notice was therefore timely. After defendants' motion was summarily denied, defendants again argued in their respondents' brief that the appeal should be dismissed as untimely.

After reviewing the history and development of the constructive-filing doctrine, the appellate court agreed with defendants that the prison-delivery rule does not apply to the filing of a notice of appeal in a civil case. Although indicating that it might conclude differently "[w]ere we writing on a clean slate," the appellate court felt constrained by the Judicial Council's enactment of former rule 31(a) (now rule 8.308(e)), which applies to criminal appeals and codifies the prison-delivery rule announced in Jordan, supra, 4 Cal.4th 116, and by what the Court of Appeal viewed as the contrasting civil rule, which provides that "[i]f a notice of appeal is filed late, the reviewing court mustdismiss the appeal" (former rule 2(e), now rule 8.104(b)). The appellate court also attached significance to (1) an Advisory Committee comment noting that the time for filing a notice of appeal in criminal cases is governed by constructive-filing case law, and (2) the circumstance that the Judicial Council never has made a corresponding change to the rule governing the time to file civil appeals. From this, the Court of Appeal concluded that the Judicial Council was well aware of the prison-delivery rule but intended it to apply solely to criminal appeals. Finally, the appellate court stressed that it was faced with a jurisdictional issue, stating it lacked "discretion to relieve a civil appellant from tardiness in filing a late notice of appeal," because the timely filing of a notice of appeal is a prerequisite to the exercise of appellate jurisdiction and a reviewing court may not grant relief from default for " 'failure to file a timely notice of appeal' " (italics omitted, quoting former rule 45(e), now rule 8.60 (d)).

Based upon the foregoing, the Court of Appeal dismissed plaintiff's appeal as untimely. We granted plaintiff's petition for review and appointed pro bono counsel to represent him.


As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite. "Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal." (Jordan, supra, 4 Cal.4th 116, 121; see Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-674 (Hollister); Estate of Hanley (1943) 23 Cal.2d 120, 122-124 (Hanley).) The purpose of this requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all. (In re Chavez (2003) 30 Cal.4th 643, 650 (Chavez).)

Plaintiff contends that his notice of appeal should be deemed "constructively filed within the appropriate filing period" under the prison-delivery rule, arguing that the reasons for applying the rule in criminal appeals are equally valid in civil appeals. Defendants, on the other hand, insist that application of the prison-delivery rule to civil appeals is precluded by the rules of court and that, absent a rule that deems the notice timely filed as a matter of law, the appellate court was "without jurisdiction to determine the merits of the appeal" and was required to dismiss it. As explained below, we agree with plaintiff that the prison-delivery rule properly applies to notices of appeal filed by incarcerated self-represented litigants in civil cases.


We long have recognized a "well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases 'when such can be accomplished without doing violence to applicable rules.' " (Hollister, supra, 15 Cal.3d at p. 674.) "[T]here are many cases in which this policy, implemented in accordance with 'applicable rules,' will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period." (Ibid. italics omitted) Although adhering to the established rule that the time for filing a notice of appeal is jurisdictional, these decisions seek to alleviate the harshness of the rule's application in certain compelling circumstances by holding that an appellant's efforts should be deemed to be a constructive filing of the notice within the prescribed time limits. (In re Benoit (1973) 10 Cal.3d 72, 83-84 (Benoit); see also Hollister, supra, 15 Cal.3d at pp. 669-670 [noting that our constructive-filing decisions reflect application of "principles of construction and interpretation in a manner consistent with the policy . . . of granting the right of appeal in doubtful cases" while "steadfastly adher[ing] to the ...

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