NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG20068477)
This appeal arises from a lawsuit filed by plaintiff Clarence Avery, appearing by and through guardian ad litem Devier Avery, against defendants All Saintsidence OPCO, LLC (hereafter "All Saints") and Kindred Healthcare Operating, Inc., alleging, among other things, elder abuse and neglect in violation of Welfare and Institutions Code section 15600 et seq. After the trial court granted Avery preference pursuant to Code of Civil Procedure section 36, All Saints filed a petition to compel arbitration that was denied. All Saints filed a notice of appeal from the order denying its petition to compel arbitration pursuant to section 1294, subdivision (a).
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Avery now moves to dismiss the appeal on the grounds that: (1) All Saints failed to timely file its opening brief as required by California Rules of Court, rule 8.715(a) ; and (2) the notice of appeal is defective because All Saints failed to attach the order granting preference to its notice of appeal and the notice of appeal failed to state the appeal is subject to expedited rules as required by rule 8.712(a). We agree the notice of appeal is defective and therefore grant the motion to dismiss.
All further rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2021, the trial court issued an order denying All Saints's petition to compel arbitration on two grounds. First, the court found All Saints waived its right to compel arbitration by not timely filing its petition to compel arbitration despite knowing Avery had less than six months to live. The court set forth a timeline of the case and the timing of the petition to compel arbitration, and found the delay in filing the petition was consistent with a tactical decision to stall in light of Avery's poor prognosis. In addition to finding All Saints waived its right to arbitrate, the court also found All Saints failed to establish that Avery gave his sister, who signed papers containing the arbitration agreement, the authority to enter into an arbitration agreement.
On April 19, 2021, All Saints filed a notice of appeal from the order denying the petition to compel arbitration pursuant to section 1294, subdivision (a). For some time, however, All Saints was unable to produce a conformed copy of its notice of appeal, and so Avery disputed it was filed. On April 29, 2021, the trial court continued the trial date to May 10, 2021, and ordered the parties to file briefs by May 4 concerning the alleged notice of appeal. On May 5, 2021, All Saints informed the court and Avery's counsel that its notice of appeal finally appeared in the court's register of actions. Around this time, Avery's counsel emailed All Saints's counsel at least twice, asking whether it filed an opening brief which was due on April 29, 2021. Counsel for All Saints responded by, among other things, denying there was an expedited deadline.
All Saints explains it used an "attorney service" called "Knox" to file the notice of appeal, and Knox "informed them that the Alameda Superior Court Clerk's Office routinely delayed processing similar filings, sometimes taking several weeks before submitted filings were file-stamped, conformed, returned, and ultimately recorded in the court's Register of Actions." --------
On May 11, 2021, the notice of appeal was lodged with this court. On May 12, 2021, Avery moved to dismiss the appeal. Thereafter, All Saints filed opposition, and Avery filed a reply.
Section 1294, subdivision (a), provides that a party can appeal from an order denying a petition to compel arbitration. Section 1294.4 provides that "in an appeal filed pursuant to subdivision (a) of Section 1294 involving a claim under the Elder and Dependent Adult Civil Protection Act (Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code) in which a party has been granted a preference pursuant to Section 36 of this code, the court of appeal shall issue its decision no later than 100 days after the notice of appeal is filed." (§ 1294.4, subd. (a).) The Legislature enacted this section to create a "limited expedited appeal process." (Legis. Com. com., Deering's Ann. Code Civ. Proc. foll. § 1294.4.)
Rules 8.710 through 8.717 were adopted to implement section 1294.4. (Rule 8.710(a); see § 1294.4, subd. (c).) Those rules set out special and expedited procedures applicable to appeals under section 1294.4. As relevant here, rule 8.712, entitled "Notice of appeal," states: "(a) Contents of notice of appeal [¶] (1) The notice of appeal must state that the superior court order being appealed is governed by the rules in this chapter. [¶] (2) Copies of the order being appealed and the order granting preference under Code of Civil Procedure section 36 must be attached to the notice of appeal." (Bolding omitted.)
Initially, we note there is no dispute between the parties that section 1294.4 or its implementing rules apply. Indeed, this is an appeal from an order denying a petition to compel arbitration filed pursuant to section 1294, subdivision (a) involving a claim under the Elder and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) where the trial court granted preference pursuant to section 36. As such, section 1294.4 and its implementing rules apply.
Avery argues this appeal should be dismissed because All Saints's notice of appeal was defective. More specifically, Avery alleges All Saints failed to abide by rule 8.712(a), which requires a notice of appeal "state that the superior court order being appealed is governed by the rules in this chapter" and have attached to it a copy of the order granting preference pursuant to section 36. We agree. The notice of appeal plainly fails to comply with the content requirements for a notice of appeal set out in rule 8.712(a).
All Saints, who concedes the defects and offers no reasonable justification for them, contends the problem is "hyper-technical" and can "easily be cured" and so should not be a basis to dismiss the appeal. (Opp. pp. 12-13.) We disagree. The content requirements in this rule are meant to put the parties and the reviewing court on notice that an appeal on a very expedited timeline has been filed and to facilitate the expedited appeal process. All Saints filed this appeal and it was All Saints's responsibility to understand what rules would apply going forward, and to ensure it could competently litigate the appeal. Its failure to comply with the rules has led to an incurable problem, or one that will be onerous to cure: a breakdown in the expedited appeal process in a case involving a plaintiff with a very poor prognosis, and substantial erosion of the 100 day period that this court has to issue a decision in this appeal.
All Saints argues dismissing this appeal would run contrary to the rule that notices of appeal are to be liberally construed. Again, we disagree. All Saints's sole authority for this argument is In re Joshua S. (2007) 41 Cal.4th 261, which states: "[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." [Citations.] A notice of appeal 'is sufficient if it identifies the particular judgment or order being appealed.' (Rule 8.100(a)(2).)" (41 Cal.4th at p. 272, italics added.)
Joshua S., however, is distinguishable as it did not assess the expedited rules at issue here. Furthermore, this is a case where the defects in the notice of appeal already are prejudicing Avery's right to have this appeal decided in accord with the expedited procedures. For example, All Saints has not complied with the expedited briefing schedule set out in rule 8.715, which impacts execution of the briefing schedule as a whole and how quickly we can adjudicate this appeal. No good cause for its failure to file an opening brief has been shown. (Rule 8.717; § 1294.4, subd. (b).) Emails accompanying the moving papers indicate that All Saints refused to acknowledge the expedited appeal process applied at all until Avery filed this motion to dismiss. Presumably, the defective notice of appeal and ensuing delay has caused Avery to incur additional litigation costs by having to file this motion to get All Saints to acknowledge the expedited appeal process applied.
In sum, we grant the motion to dismiss because All Saints's notice of appeal is defective. Because we grant the motion to dismiss on this ground, we need not and so do not consider Avery's contention that the appeal should be dismissed because All Saints violated rule 8.715.
The appeal is dismissed. Avery shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________