Under the California Rules of Court, a Notice of Appeal for a Domestic Violence Restraining Order Must be Filed Within 60 Days After Entry of Judgment, or Within 180 Days if Service was Not Proper
On July 19, 2013, the divorce court issued a domestic violence restraining order against Appellant. Appellant and his divorce lawyer were personally present in the courtroom for the hearing on the domestic violence restraining order. Neither Respondent’s divorce attorney nor the divorce court clerk served a “Notice of Entry” of the restraining order or a file-stamped copy of the judgment, showing the date either was served. On November 15, 2013, Appellant’s divorce lawyer filed a notice of appeal from the domestic violence restraining order, 119 days after the restraining order was filed. Respondent’s divorce lawyer filed a motion to dismiss the appeal as untimely because Appellant had not filed it within 60 days. Respondent’s divorce lawyer contended that the shorter 60-day time limit applied rather than the 180-day outside limit because Appellant was present at the hearing, and the Judicial Council form provided that a restrained person was considered “served” when present.
There are no unique jurisdictional time limits under the California Rules of Court for appeals from domestic violence restraining orders. As with other appeals, there is a 60-day time limit for restraining orders that are properly served, either through a notice of entry of judgment, or through service by the clerk or party of a file-stamped copy of the order. Otherwise, the notice of appeal must be filed within 180 days after entry of the judgment. “This outside time limit is jurisdictional and cannot be extended, even if notice was not given. Appellants have a maximum of 180 days to come to a judgment, and cannot wait for a judgment to come to them.”
Without dispute, neither the divorce court clerk nor Respondent’s divorce lawyer served a file-stamped copy of the domestic violence restraining order in the manner required by California Rules of Court. Therefore, under the plain language of the California Rules of Court, the shorter 60-day filing period did not apply. There is nothing in the court rules to support Respondent’s divorce lawyer’s interpretation that Appellant somehow “waived” his right to appeal the domestic violence restraining order simply because he received actual notice of the divorce court’s ruling. Thus, Respondent’s divorce lawyer’s motion to dismiss the appeal was denied.
In re Marriage of Lin (2014) 225 Cal. App. 4th 471