The California Supreme Court recently decided that so long as its notice of appeal is timely filed, a suspended corporation can still pursue the appeal if it later revives its corporate powers. The case, Bourhis v. Lord, involved a suspended corporation filing notices of appeal. Several months later, the corporation revived its corporate powers. In light of such subsequent revival, the Court of Appeal rejected motions to dismiss the corporation's appeals, and the Supreme Court affirmed. "When that certificate [of revivor] is received, as one court put it, '[t]he legal rights of a suspended corporation are then revived, as an unconscious person is revived by artificial respiration.'" Such revival "made the earlier, invalid but timely, notices of appeal valid and still timely."
If the procedural posture brings to mind audible exclamations of relief, the back-story to this case heightens such emotions. When the Supreme Court heard oral argument by special session in Southern California, the corporation's appellate counsel showed up for oral argument--in San Francisco! Appellate counsel was anything but a neophyte, having argued dozens of appeals before, including many in the high court. When he failed to show, the Court allowed opposing counsel to argue, then declared the case submitted. Court staffers have reported that counsel's no-show is only the second one in institutional memory.
The decision, issued on March 4, was controlled by stare decisis. Justice Joyce L. Kennard concurred and dissented, stating that while precedent dictated the outcome, it was time to abandon that precedent. "[T]hose two decisions were wrong then, are wrong now, and should be overruled." Justice Kennard asserted that in order for notices of appeal to invoke appellate court jurisdiction, such notices must be timely and valid when filed.
As for the corporation's appellate practitioner? Although he had expressed confidence in the result, he must be feeling a little relieved these days. Whew!