Missing the Party: The California Notice of Appeal


In both California and federal practice, a notice of appeal is one of the simplest documents to prepare. Yet human nature ensures that careless mistakes will occur. Under California?s rules, a notice of appeal is ?sufficient? if it ?identifies the particular judgment or order being appealed? and is signed. Cal Rules of Ct 8.100. The federal rules impose another requirement not expressly included in California practice: A federal notice of appeal must ?specify the party or parties taking the appeal by naming each one in the caption or body of the notice.? Fed R App P 3(c)(1)(A). Recognizing that lawyers often represent multiple parties, the federal rules also allow describing the appealing parties using terms such as ?all plaintiffs? or ?all defendants, except X.?

What happens, however, when a California notice of appeal neglects to name a party that intended to appeal? One can easily imagine the harried lawyer who represents eight parties filing a notice of appeal that inadvertently names only seven of them, when the intent was for all eight to appeal. To be sure, California?s rules require that a ?notice of appeal must be liberally construed.? Cal Rules of Ct 8.100(a)(2). But does that liberality extend to allowing an appeal by a party not named in the notice of appeal?

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