Supreme Court of California Justia
Citation 46 Cal. 4th 106, 205 P.3d 1047, 92 Cal. Rptr. 3d 595

Silverbrand v. County of L.A.

Filed 4/23/09

IN THE SUPREME COURT OF CALIFORNIA

PETER SILVERBRAND,
Plaintiff and Appellant,
S143929
v.
Ct.App. 2/8 B176239
COUNTY OF LOS ANGELES et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. MC 014605
___________________________________ )

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,1 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

1
All subsequent references to rules are to the California Rules of Court,
unless other specified.
1


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,
2
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.
I.
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, 2004.2
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.

2
Plaintiff’s case apparently has continued against the state-prison
defendants.
3


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.3 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

3
Under rule 8.104(a)(2) (former rule 2(a)(2)), a notice of appeal in a civil
case must be filed within 60 days after a notice of entry of judgment is served by a
party. The Code of Civil Procedure governs the computation of time under the
rules. (Rule 8.60.) Sixty days after the notice of entry of judgment in this case
expired on Sunday, June 13, 2004. (Code Civ. Proc., § 12.) Because this date fell
on a weekend, Monday, June 14, 2004, is treated as the deadline for plaintiff to
have filed the notice of appeal with the clerk of the superior court. (Code Civ.
Proc., §§ 10, 12, 12a.)
4


notice of appeal is filed late, the reviewing court must dismiss 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.
II.
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).)
5
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.
A.
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 fundamental precept
6
that the timely filing of an appropriate notice of appeal or its legal equivalent is an
absolute prerequisite to the exercise of appellate jurisdiction”].) The classic
example of the application of this policy is the determination that a notice of
appeal was timely filed under the prison-delivery rule.
In Jordan, supra, 4 Cal.4th 116, we found it useful to our discussion to
review the historical development of the prison-delivery rule. (See id. at pp. 122-
128.) A similar review is helpful in the present case as well.
This court first articulated the prison-delivery rule in People v. Slobodion
(1947) 30 Cal.2d 362 (Slobodion), which held that a self-represented prisoner’s
notice of appeal from a criminal conviction was constructively filed at the time it
was delivered to state prison employees for mailing six days prior to the final date
for taking an appeal, notwithstanding the circumstance that the notice was not
received by the county clerk until five days after expiration of the applicable filing
period. In Slobodion, we made several relevant observations concerning that
criminal defendant’s incarceration and self-represented status: “[A]ppellant, by
reason of his imprisonment and desiring to appeal in propria persona, was wholly
dependent on the prison employees for effecting the actual filing of his notice of
appeal within the prescribed time. Without direct access himself [to] the ‘clerk of
the superior court’ wherein the judgments were rendered against him, appellant
acted promptly in the only channel open to him in protection of his right of
appeal — depositing his notice of appeal in the regular mail processes of San
Quentin Penitentiary . . . in ample time to permit the prison employees to forward
the notice in the United States mail . . . but the actual filing was made . . . five days
late because the prison employees delayed in mailing the notice . . . . The state by
law imposed the conditions governing the taking of an appeal; appellant[,]
incarcerated in a state institution[,] was forced to comply with the state prison
rules, which included the censoring of all communications of the inmates prior to
7
mailing and which in the case of legal mail might require ‘one day or a week’
before clearance was had; and the notice in question failed to reach the ‘clerk of
the superior court’ for actual filing within the prescribed time, not through any
fault on the part of appellant but solely as the result of the negligence of the state’s
employees. In such circumstances no other conclusion is tenable but that
appellant, by placing his notice in the hands of the state’s employees for mailing
six days prior to the final day allowed for its actual filing, met the time
requirements governing his right of appeal insofar as it was possible for him to do
so.” (Id. at p. 366.)
In light of that inmate’s limited control and lack of access, we concluded
that delivery of his notice of appeal to prison authorities “constituted a
constructive filing within the prescribed time limit and satisfied the jurisdictional
requirement as contemplated by law.” (Slobodion, supra, 30 Cal.2d at pp. 368-
369.) We also noted that to hold otherwise would “run counter” to the United
States Supreme Court’s decision in Cochran v. Kansas (1942) 316 U.S. 255 pp.
368-369, which held that prison officials who suppressed a prisoner’s appeal
documents — rendering it impossible for him to perfect an appeal — violated the
equal protection clause of the Fourteenth Amendment to the United States
Constitution by refusing “ ‘privileges of appeal . . . afforded to others.’ ”
(Slobodion, supra, 30 Cal.2d at p. 368.)4

4
Subsequent to Slobodion, we applied the prison-delivery rule to similar
factual situations in which it appeared that the conduct of prison authorities,
negligent or otherwise, had played a significant role in delaying transmittal of the
prisoner’s notice of appeal. (In re Gonsalves (1957) 48 Cal.2d 638, 645-646
(Gonsalves); see also People v. Frye (1953) 117 Cal.App.2d 101, 102-103.) We
additionally applied the constructive filing doctrine to situations in which the
prisoner, although failing to file a notice within the then-applicable 10-day filing
period, had relied upon statements or conduct of prison authorities that lulled the
(Footnote continued on next page.)
8


Relying upon Slobodion, the Court of Appeal in People v. Dailey (1959)
175 Cal.App.2d 101, 107 (Dailey), extended the constructive filing doctrine and
its prison-delivery rule to self-represented prisoners who delivered a notice of
appeal from a criminal conviction to prison officials anytime within the then
specified 10-day filing period: “Otherwise, the actual time within which a person
who is confined in prison may act is reduced beyond the time in which a person
who is not so confined may act. Thus a person on bail has until 5 o’clock of the
tenth day to act to file his notice or have someone file for him. The person in
prison has no such time. He must act to file his notice with the prison authorities
at the very least on the ninth day and in most instances on the eighth day as from
some of the prisons it will take two days for the mail to reach many of the county
clerks’ offices in this state. Thus, a person in prison, by reason of his
imprisonment, loses from one to two days of the time allowed him to act. He has
no direct access, as has the nonprisoner, to the proper county clerk’s office. . . . In
order to give him the same rights and the same justice as a nonprisoner it is
necessary and right that it be held that a filing with the prison authorities at any
time within the 10 days is a constructive filing at that time in the office of the
proper county clerk.” (Id. at p. 104.) The Court of Appeal also noted that its
holding would greatly simplify the appellate courts’ involvement each time a
prisoner’s notice of appeal arrives late at the county clerk’s office, because “[a]ll
that needs to be determined . . . is the very simple question of when was it handed
by the prisoner to the proper prison official.” (Id. at p. 107.)

(Footnote continued from previous page.)

prisoner into a false sense of security. (People v. Head (1956) 46 Cal.2d 886, 887-
889; see also People v. Calloway (1954) 127 Cal.App.2d 504, 505-507.)
9


In 1961, the Judicial Council amended former rule 31(a), regarding the
specified time for filing a notice of appeal in a criminal matter, to provide for a
special procedure by which a party could petition for relief from a county clerk’s
rejection of a notice of appeal as untimely.5 Pursuant to the revised rule,
reviewing courts had jurisdiction to excuse late filings in appropriate cases, a
power that we urged “should be liberally exercised to avoid loss of the right to
appeal.” (People v. Casillas (1964) 61 Cal.2d 344, 346; see also People v. Acosta
(1969) 71 Cal.2d 683, 687-688 [summarizing general rules fashioned by this court
for exercising the power to relieve a failure to file a timely notice of appeal].)
Therefore, in the decade between 1961 and 1972, there generally was no need to
apply the doctrine of constructive filing as such. (Jordan, supra, 4 Cal.4th at
p. 84, fn. 11.) In 1972, however, the rule was amended to eliminate this special
procedure and to extend the period in which to file a notice of appeal from 10 days
to 60 days. (Former rule 31(a), amended eff. Jan. 1, 1972.)
Shortly thereafter, we were faced with the question of whether removing
the procedure for processing late notices of appeal abrogated the basis for
constructive filing by effectively withdrawing jurisdiction from appellate courts to
consider such appeals. (Benoit, supra, 10 Cal.3d 72.) We concluded that the
doctrine had “continued validity today as a judicial instrument for resolving
questions of delay in filing notices of appeal” (id. at p. 84, fn. omitted), and

5
As amended in 1961, former rule 31(a) allowed an appellant to “petition the
reviewing court for relief by verified statement or declaration under penalty of
perjury, setting forth the date of the order or judgment from which the party seeks
to appeal, the steps which the party took to file his notice of appeal on time, and
any other information which has, or which the party believes has, a bearing upon
the circumstances which caused the notice of appeal to arrive late.” (Former rule
31(a), amended eff. Sept. 15, 1961.)
10


specifically cited the prison-delivery rule as described in Dailey, supra, 175
Cal.App.2d 101, as representing an integral component of California’s
constructive filing doctrine. (Benoit, supra, 10 Cal.3d at p. 82.) We further held
that the concept of constructive filing extended to instances in which an
incarcerated defendant made arrangements with counsel to file a notice of appeal
and diligently attempted to ensure that his or her appeal was filed in a timely
manner, but counsel’s negligence resulted in a tardy notice. (Id. at pp. 86-89.)
The next decade brought the United States Supreme Court’s decision in
Houston v. Lack (1988) 487 U.S. 266 (Houston), which held that a self-
represented prisoner’s appeal from the denial of a petition for writ of habeas
corpus — a civil proceeding — was timely filed when delivered by the petitioner
to prison authorities within the applicable 30-day period, for forwarding to the
court clerk. In reaching this conclusion, the high court emphasized the unique
obstacles facing a prisoner seeking to appeal without the aid of counsel: “[T]he
pro se prisoner has no choice but to entrust the forwarding of his notice of appeal
to prison authorities whom he cannot control or supervise and who may have
every incentive to delay. No matter how far in advance the self-represented
prisoner delivers his notice to the prison authorities, he can never be sure that it
will ultimately get stamped ‘filed’ on time. And if there is a delay the prisoner
suspects is attributable to the prison authorities, he is unlikely to have any means
of proving it, for his confinement prevents him from monitoring the process
sufficiently to distinguish delay on the part of prison authorities from slow mail
service or the court clerk’s failure to stamp the notice on the date received.
Unskilled in law, unaided by counsel, and unable to leave the prison, his control
over the processing of his notice necessarily ceases as soon as he hands it over to
the only public officials to whom he has access — the prison authorities — and
11
the only information he will likely have is the date he delivered the notice to those
prison authorities and the date ultimately stamped on his notice.” (Id. at p. 271.)
The high court also recognized the administrative advantages of the prison-
delivery rule: “The pro se prisoner does not anonymously drop his notice of
appeal in a public mailbox — he hands it over to prison authorities who have well-
developed procedures for recording the date and time at which they receive papers
for mailing and who can readily dispute a prisoner’s assertions that he delivered
the paper on a different date. Because reference to prison mail logs will generally
be a straightforward inquiry, making filing turn on the date the pro se prisoner
delivers the notice to prison authorities for mailing is a bright-line rule, not an
uncertain one.” (Houston, supra, 487 U.S. at p. 275.)6
A few years later, in Jordan, supra, 4 Cal.4th 116, the viability of
California’s prison-delivery rule again was challenged. This time the question
presented was whether the rule continued to apply in light of the increase in the
time made available by former rule 31(a) for filing the notice of appeal, from
10 days to 60 days. The respondent argued that the prison-delivery rule was
“anachronistic,” having been derived from case law abrogated by the 1972
amendment to the rules of court governing notices of appeal, and that the 60-day
filing provision allowed “ample time for the filing of a notice of appeal.”

6
In 1993, in response to Houston, supra, 487 U.S. 266, the federal rules
were amended to incorporate the “prison mailbox rule” for both civil and criminal
appeals. (See Fed. Rules App.Proc., rule 4(c)(1), 28 U.S.C. [“If an inmate
confined in an institution files a notice of appeal in either a civil or a criminal case,
the notice is timely if it is deposited in the institution’s internal mail system on or
before the last day for filing”]; Notes of Advisory Com. on Rules, 1993 Amends.,
Fed. Rules App.Proc., foll. rule 4(c), 28 U.S.C.; see also Hamm v. Moore (8th Cir.
1992) 984 F.2d 890, 892 [extending Houston’s rule to non-habeas-corpus civil
notice of appeal]; Hostler v. Groves (9th Cir. 1990) 912 F.2d 1158 [same];
Thompson v. Montgomery (5th Cir. 1988) 853 F.2d 287, 288 [same].)
12


(4 Cal.4th at p. 122.) After reviewing our own prison-delivery jurisprudence as
well as the Houston decision, we concluded that the extension of the filing period
did not eliminate the basis for the prison-delivery rule: “[T]he rule rests in large
measure on the proposition that prisoners and nonprisoners are entitled to have
available an equal period of time in which to pursue their appellate rights. At
present, a nonprisoner who waits until the 60th day after rendition of judgment to
deliver personally a notice of appeal to the appropriate county clerk is entitled to
have his or her appeal heard on the merits. Although we do not condone delay of
this type, such action by a defendant is deemed to be sufficient. The prison-
delivery rule simply ensures that a prisoner who exercises the same degree of
diligence, by personally delivering to prison authorities a notice of appeal on the
60th day, is accorded similar treatment.” (4 Cal.4th at p. 129.)
Our decision in Jordan embraced the rationale of Houston, supra, 487 U.S.
266, and relied heavily upon the unique situation of the self-represented inmate:
“ ‘Such prisoners cannot take the steps other litigants can take to monitor the
processing of their notices of appeal and to ensure that the court clerk receives and
stamps their notices of appeal before the . . . deadline. Unlike other litigants, pro
se prisoners cannot personally travel to the courthouse to see that the notice is
stamped “filed” or to establish the date on which the court received the notice.
Other litigants may choose to entrust their appeals to the vagaries of the mail and
the clerk’s process for stamping incoming papers, but only the pro se prisoner is
forced to do so by his situation. And if other litigants do choose to use the mail,
they can at least place the notice directly into the hands of the United States Postal
Service (or a private express carrier); and they can follow its progress by calling
the court to determine whether the notice has been received and stamped, knowing
that if the mail goes awry they can personally deliver notice at the last moment or
that their monitoring will provide them with evidence to demonstrate either
13
excusable neglect or that the notice was not stamped on the date the court received
it. Pro se prisoners cannot take any of these precautions; nor, by definition, do
they have lawyers who can take these precautions for them.’ [Citation.]” (Jordan,
supra, 4 Cal.4th at pp. 128-129 [quoting Houston, supra, 487 U.S. at pp. 270-
271].)
We also agreed in Jordan that the prison-delivery rule advanced judicial
efficiency, particularly compared to an alternative approach that would require a
self-represented prisoner to “ ‘establish that the notice of appeal was placed in the
prison mail . . . sufficiently in advance of the filing deadline that in the normal
course of prison mailing and United States Postal procedures,’ ” the clerk would
have received the notice by the jurisdictional deadline. (Jordan, supra, 4 Cal.4th
at p. 129, italics omitted.) We noted that “application of such an amorphous
standard, on a case-by-case basis, would impose an extreme burden upon the
courts. In light of the uncertainty involved in mail delivery, the length of time
‘normally’ needed to ensure timely delivery is subject to abridgment by numerous
variables beyond the prisoner’s control. . . . In view of the increased demands
upon our appellate courts, it is not the best use of judicial resources to require
those courts in such situations to make determinations as to whether notices of
appeal transmitted by individual prisoners were processed in the ‘normal course’
of events.” (Id. at pp. 129-130.) By contrast, we concluded, the prison-delivery
rule “ ‘greatly simplif[ied]’ ” the processing of criminal appeals when the notice of
appeal is not received within the prescribed filing period, because it is concerned
only with the date the self-represented prisoner delivered the notice to prison
authorities for mailing. (Id. at p. 130.)
Although Slobodion, Benoit, and Jordan involved notices of appeal from
criminal convictions, the concerns that prompted us to adopt, expand, and reaffirm
the prison-delivery rule in those cases apply equally to self-represented prisoners
14
pursuing civil appeals. First and most compelling is that self-represented prisoners
face precisely the same institutional obstacles to preserving their right to appeal in
civil cases as they do in criminal cases.7 Like the defendant in Jordan, plaintiff in
the present case personally could not have mailed or hand-delivered copies of his
notice of appeal to the superior court clerk. The sole means available to him for
filing the notice was delivering it to prison authorities, the only public officials to
whom he had access. After delivery, he had no control over when the notice
actually was filed but was forced to rely upon the diligence of prison officials, the
postal service, and the court clerk. Unlike other litigants, he could not monitor the
mail to ensure that his notice of appeal was timely filed, and he may not have been
able to telephone the court to determine whether the notice of appeal had been
received and stamped “filed,” nor did he have the assistance of an attorney to
monitor this process for him. As a result, plaintiff would have been unaware of
delays in filing and unable to correct any problems even if apprised of them. If
filing was delayed, he would have had no way to determine the cause or to obtain
proof in support of a finding of excusable neglect. The only information he was
likely to have is the date he delivered the notice to those prison authorities and the
date ultimately stamped on his notice.
Second, and equally persuasive in support of the application of the prison-
delivery rule to civil cases, are the administrative benefits that flow from having
the same bright-line rule apply both to the civil and criminal appeals filed by self-

7
Indeed, as plaintiff points out, it is more difficult for a self-represented
prisoner to file an appeal in a civil case than in a criminal case, in light of the fees
that must accompany a civil notice of appeal unless an application for waiver of
court fees is granted. (See rule 8.100(b).)
15


represented inmates in California’s congested courts.8 A rule applying the prison-
delivery rule to all appeals by self-represented inmates would be far easier to
administer than a regime embracing different filing periods depending upon
whether the matter is civil or criminal. The standardized, straightforward
approach of relying upon the date of submission to prison authorities to determine
the time of filing also minimizes uncertainty for court clerks and abates time-
consuming collateral litigation in the appellate courts over nonsubstantive issues,
such as whether a notice of appeal was deposited with prison authorities
sufficiently in advance of a deadline to reach the court clerk for timely filing, or
whether there were circumstances justifying any alleged delay by the authorities in
the delivery of the notice to the court.9

8
Total filings in the Courts of Appeal for the fiscal year 2006-2007 were
24,934, which included 6,116 notices of appeal filed in civil cases and 6,508
notices of appeal filed in criminal cases. (See Judicial Council of Cal., 2008 Court
Statistics Rep. (2008) p. ix
<http://www.courtinfo.ca.gov/reference/documents/csr2008.pdf> [as of Apr. 23,
2009].)

9
Earlier decisions have detailed the long and involved evidentiary hearings
before court-appointed referees that may be required, in the absence of the prison-
delivery rule, to determine on a case-by-case basis the circumstances surrounding
a self-represented prisoner’s deposit of a notice of appeal with prison authorities.
(See, e.g., Jordan, supra, 4 Cal.4th at pp. 129-130; Gonsalves, supra, 48 Cal.2d at
pp. 640-641; Slobodion, supra, 30 Cal.2d at pp. 364-365.) Similar concerns —
the delay and public expense associated with processing numerous applications for
relief under former rule 31(a)’s special procedure applicable to late notices of
appeal — motivated the Judicial Council to amend the rule to eliminate this
procedure and extend the period in which to file a notice of appeal from 10 days to
60 days. (See Comments Invited — Proposed Amends. to Cal. Rules of Court
(1971) 46 State Bar J. 530.)

16


In rejecting the application of the prison-delivery rule to civil cases, the
Court of Appeal stressed that such matters permit no “excuses” or “exceptions” for
late-filed appeals. This assertion misstates the issue. The prison-delivery rule,
whether applied in a civil or a criminal case, does not excuse a late-filed appeal,
nor does it create an exception by which an incarcerated litigant may avoid the
jurisdictional time restrictions for filing a notice of appeal. Under the prison-
delivery rule, a notice of appeal still must be filed within the applicable
jurisdictional time period. That rule simply provides that the time of the filing
constructively occurs, as a matter of law, when the self-represented prisoner
properly delivers the notice to the prison authorities for forwarding to the superior
court clerk.10 As such, the rule does not subvert the policies of speedy resolution
and finality of judgment that underlie the jurisdictional requirement of a timely
appeal. The rule simply ensures that the requirement has the same practical effect
in all cases.
This is the essence of the prison-delivery rule — providing self-represented
prisoners with an opportunity to file a notice of appeal equal to that afforded
nonprisoners and prisoners represented by counsel. (Jordan, supra, 4 Cal.4th at
p. 128; see also Slobodion, supra, 30 Cal.2d at p. 367 [“While in perfecting his
appeal ‘a convicted defendant serving a term of imprisonment in the state prison
has no greater or additional rights because he is acting as his own attorney than if
he were represented by a member of the bar’ [citation], neither on the same basis
will he be deemed to have fewer rights”].) Without the prison-delivery rule, the
actual time within which a self-represented prisoner may act to preserve his or her

10
Of course, in order for the prison-delivery rule to apply, the submissions of
self-represented prisoners also must comply with reasonable prison regulations
established for processing prisoner mail.
17


right of appeal is reduced by an uncertain number of days from the time available
to a prisoner represented by counsel or to a person who is not so confined.
(Jordan, supra, 4 Cal.4th at p. 128.) In Jordan, we discerned no principled basis
for tolerating such a disparity in the processing of criminal appeals, regardless of
the length of time provided for an appeal to be taken. (Ibid.) We similarly find no
meaningful basis for distinguishing the appeal rights of self-represented prisoners
from those of persons not in custody or from prisoners represented by counsel,
simply because the appeal is civil in nature. (Cf. Slobodion, supra, 30 Cal.2d at
pp. 368-372 (conc. opn. of Carter, J.).)
It is true, as defendants argue, that in several contexts, a civil litigant is not
afforded the same rights as the criminal defendant who is challenging his or her
confinement. The principal reasons for applying the prison-delivery rule in the
criminal context, however, are not grounded in a special concern with preserving a
self-represented inmate’s right to challenge the deprivation of personal liberty
imposed by a criminal conviction; those reasons, as described above, are equally
applicable in the civil context. We further note that even though a civil lawsuit
does not challenge the conviction that resulted in the inmate’s incarceration, civil
cases involving prisoner litigants frequently concern important constitutional
issues, such as prison conditions, deprivation of civil rights, and the termination of
parental rights, as well as other significant matters, such as marital dissolution.
Applying the prison-delivery rule to civil cases serves to create functionally
equivalent time bars for all appellants and reaffirms the “equality of access to our
courts” that we found vital in Jordan, supra, 4 Cal.4th at page 130. Because
substantial rights depend upon the filing date of a notice of appeal, this result is
both “ ‘necessary and right.’ ” (Ibid.) Subsequent to our grant of review in the
present case, another district of the Court of Appeal was presented with the same
issue now before us, and arrived at the same conclusion we reach today, namely,
18
that the reasoning behind the prison-delivery rule governing criminal appeals
applies equally to notices of appeal filed in civil cases by self-represented
incarcerated litigants. (Shufelt v. Hall (2008) 163 Cal.App.4th 1020, 1025
(Shufelt) [relying upon and quoting at length from Houston, supra, 487 U.S. at
pp. 270–271, and Jordan, supra, 4 Cal.4th at pp. 128-129].)
This conclusion is consistent with the national trend. As noted, the federal
rules of appellate procedure were amended subsequent to the high court’s Houston
decision to apply the prison-delivery rule to both civil and criminal notices of
appeal. (Fed. Rules App.Proc. rule 4(c)(1), 28 U.S.C.; see also In re Flanagan (3d
Cir. 1993) 999 F.2d 753, 757-759 [extending Houston’s rule to notice of appeal
filed in district court from final bankruptcy court order].) Similarly, the United
States Supreme Court rules do not distinguish between civil and criminal cases
and instead apply the federal “prison mailbox rule” to the filing of any
document.11 Many states have patterned their appellate procedural rules after the
federal rules or otherwise have extended their prison-delivery rule to the filing of
notices of appeal and other appellate documents in civil cases, including petitions
for review and for writ of certiorari addressed to a state’s highest court.12

11
United States Supreme Court Rules, rule 29, paragraph 2, provides that “[i]f
submitted by an inmate confined in an institution, a document is timely filed if it is
deposited in the institution’s internal mail system on or before the last day for
filing and is accompanied by a notarized statement or declaration in compliance
with 28 U.S.C. § 1746 . . . .”

12
Jurisdictions applying the prison-delivery rule to appellate documents in
noncriminal proceedings include Alabama, Arizona, Florida, Georgia, Hawaii,
Louisiana, Mississippi, Nevada, Oklahoma, Oregon, Pennsylvania, Tennessee, and
Utah. (See, e.g., Ala. Rules. App.Proc., rule 4(c) [“notice of appeal in either a
civil or a criminal case”] and Ex parte Williams (Ala. 1992) 651 So.2d 569, 570-
571 [all “papers required or permitted to be filed in an appellate court” including
petition for writ of certiorari]; State v. Goracke (Ariz.Ct.App. 2005) 106 P.3d
(Footnote continued on next page.)
19


(Footnote continued from previous page.)

1035, 1037-1038 [petitions for review by Ariz. Supreme Ct.] and Mayer v.
Arizona
(Ariz.Ct.App. 1995) 908 P.2d 56, 58 [notice of appeal]; Fla. Rules
App.Proc., rule 9.420(a)(2) [any “document filed by a pro se inmate confined in an
institution”] and Griffin v. Sistuenck (Fla. 2002) 816 So.2d 600, 602 [self-
represented litigant not required to use exact language provided in court rule for
his or her document to be deemed timely filed in accordance with prison mailbox
rule]; Massaline v. Williams (Ga. 2001) 554 S.E.2d 720, 721-723 (Massaline)
[notice of appeal]; Setala v. J.C. Penny Co. (Haw. 2002) 40 P.3d 886, 888-892
[same]; Tatum v. Lynn (La.Ct.App. 1994) 637 So.2d 796, 798-799 [judicial review
of adverse administrative decision]; Easley v. Roach (Miss. 2004) 879 So.2d 1041
[civil filings by pro se prisoners seeking judicial review]; Kellogg v. Journal
Communications
(Nev. 1992) 835 P.2d 12, 13 [notice of appeal]; Woody v. State
ex rel. Dep’t of Corr.
(Okla. 1992) 833 P.2d 257, 258-260 [petition of error filed
in Okla. Supreme Ct.]; Or. Rules App.Proc., rule 135(4) [any “thing filed in the
appellate court” and service thereof]; Commw. v. Jones (Pa. 1997) 700 A.2d 423,
426 [“all appeals by pro se prisoners”]; Tenn. Rules App.Proc., rule 20(g) [“papers
required or permitted to be filed pursuant to the rules of appellate procedure,” and
service of such papers]; Utah Rules App.Proc., rule 4(g)) [“notice of appeal in
either a civil or criminal case”].) Kentucky and Wisconsin have adopted a “prison
mailbox tolling rule” based upon Houston’s rationale, which tolls the relevant
deadline between the time the unrepresented prisoner properly deposits the
appropriate documents in the prison mail receptacle and the time of their receipt
by the court clerk. (See, e.g., Robertson v. Commw. (Ky. 2005) 177 S.W.3d 789,
790-791 [motion for postconviction relief]; State ex rel. L’Minggio v. Gamble
(Wis. 2003) 667 N.W.2d 1, 10 [petition for certiorari review in circuit court]; State
ex rel. Nichols v. Litscher
(Wis. 2001) 635 N.W.2d 292, 298 [petition for review
by Wis. Supreme Ct.]; State ex rel. Kelley v. State (Wis.Ct.App. 2003) 661
N.W.2d 854, 855-856 [notice of appeal].) The Texas Supreme Court has held that
a self-represented prisoner in a civil case who places a notice of appeal in the
outgoing prison mailbox before the deadline to appeal, complies with its “mailbox
rule” — which deems a document timely filed if sent to the proper clerk by first-
class mail in a correctly addressed, stamped envelope on or before the last day for
filing and received not more than 10 days beyond the filing deadline. (Ramos v.
Richardson
(Tex. 2007) 228 S.W.3d 671, 673.) The parties’ briefs (and
independent research) have not revealed any report of problems stemming from
this broader application of the prison-delivery rule, or variations thereof.
(Footnote continued on next page.)
20


Decisions addressing analogous situations similarly have extended the
prison-delivery rule to other filings by self-represented incarcerated litigants. For
example, in Moore v. Twomey (2004) 120 Cal.App.4th 910, the Court of Appeal
applied the prison-delivery rule to the filing of a civil complaint by a self-
represented prisoner, concluding that the same concerns recognized in Houston
and Jordan also were present in the case before the court. (120 Cal.App. 4th at
pp. 916-917.) Although acknowledging that no reported California decision had
applied the prison-delivery rule to the filing of a civil complaint, the court in
Moore observed “that every federal circuit court of appeals to consider the issue
has held that the rule articulated in Houston applies to civil complaint filings.”
(Id. at p. 916.) Indeed, federal and state decisions have extended Houston’s rule to
a broad range of filings by self-represented prisoners, including complaints,13

(Footnote continued from previous page.)


Some jurisdictions, however, have rejected application of the prison-
delivery rule to notices of appeal on various grounds, including that Houston,
supra, 487 U.S. 266, is a federal case that does not involve a constitutional issue
and thus is not binding on state courts; the prison-delivery rule conflicts with
applicable local court rules, statutes, and case law; or such a rule was beyond the
court’s power to adopt. (See, e.g., Key v. State (Ark. 1988) 759 S.W.2d 567, 568;
Carr v. State (Del. 1989) 554 A.2d 778, 779-780; Walker-Bey v. Dep’t of Corr.
(Mich.Ct.App. 1997) 564 N.W.2d 171, 172-173; Johnson v. Purkett (Mo.Ct.App.
2007) 217 S.W.3d 341, 343-344; State v. Parmar (Neb. 1998) 586 N.W.2d 279,
361-363; State ex rel. Tyler v. Alexander (Ohio 1990) 555 N.E.2d 966, 967-968.)

13
See Sulik v. Taney County (8th Cir. 2003) 316 F.3d 813, 815; Casanova v.
Dubois (1st Cir. 2002) 304 F.3d 75, 78-79; Richard v. Ray (6th Cir. 2002) 290
F.3d 810, 812-813; Cooper v. Brookshire (5th Cir. 1995) 70 F.3d 377, 380; Dory
v. Ryan
(2d Cir. 1993) 999 F.2d 679, 682; Garvey v. Vaughn (11th Cir. 1993) 993
F.2d 776, 782; Lewis v. Richmond Police Dep’t (4th Cir. 1991) 947 F.2d 733, 736;
Halladay v. Bd. of County Comm’rs (Okla.Civ.App. 2004) 90 P.3d 578, 580-581;
Warner v. Glass (Tex. 2004) 135 S.W.3d 681, 684; but see O’Rourke v. State
(Footnote continued on next page.)
21


petitions for postconviction relief,14 motions,15 and other filings.16 This trend is
not surprising in view of the circumstance that the outcome in Houston rested not

(Footnote continued from previous page.)

(Mo.Ct.App. 1990) 782 S.W.2d 808, 809-810; Milton v. Nev. Dept. of Prisons
(Nev. 2003) 68 P.3d 895, 896; Stull v. Hoke (Or. 1997) 948 P.2d 722, 726; Grant
v. Senkowski
(N.Y. 2001) 744 N.E.2d 132, 133-134.

14
See Morales-Rivera v. United States (1st Cir. 1999) 184 F.3d 109, 110-111;
Jones v. Bertrand (7th Cir. 1999) 171 F.3d 499, 501-502; Nichols v. Bowersox
(8th Cir. 1999) 172 F.3d 1068, 1074-1077; Adams v. United States (11th Cir.
1999) 173 F.3d 1339, 1341; Burns v. Morton (3d Cir. 1998) 134 F.3d 109, 112-
113; Spotville v. Cain (5th Cir. 1998) 149 F.3d 374, 376; Peterson v. Demskie (2d
Cir. 1997) 107 F.3d 92, 93; Ex parte Powell (Ala. 1995) 674 So.2d 1258, 1259;
Haag v. State (Fla. 1992) 591 So.2d 614, 616-617; Munson v. Idaho (Idaho 1996)
917 P.2d 796, 799-800; Taylor v. McKune (Kan.Ct.App. 1998) 962 P.2d 566, 569-
570; Sykes v. Mississippi (Miss. 2000) 757 So.2d 997, 1000-1001; but see
Hastings v. Comm. of Corr. (Conn. 2004) 82 Conn.App.Ct. 600, 604; Gonzales v.
State
(Nev. 2002) 53 P.3d 901, 903-904; Moore v. Gibson (Okla.Crim.App. 2001)
27 P.3d 483, 484; State v. McLean (Wn. 2003) 80 P.3d 587, 593-594.

15
See In re Rashid (3d Cir. 2000) 210 F.3d 201, 204 (motion for rehg. in
bankruptcy case); Garrett v. United States (8th Cir. 1999) 195 F.3d 1032, 1034
(motion to alter or amend judg.); McGore v. Wrigglesworth (6th Cir. 1997) 114
F.3d 601, 605 (motion for extension of time to correct deficiencies in forma
pauperis filing); In re Sims (6th Cir. 1997) 111 F.3d 45, 47 (motion to file a
second or successive federal habeas corpus petition, and motion attacking a
sentence); Reid v. New Hampshire (1st Cir. 1995) 56 F.3d 332, 340, fn. 16
(opposition to motion for summary judg.); Caldwell v. Amend (9th Cir. 1994) 30
F.3d 1199, 1201 (motion for new trial).

16
See Tapia-Ortiz v. Doe (2d Cir. 1999) 171 F.3d 150, 152 (Federal Tort
Claims Act admin. filing); Faile v. Upjohn Co. (9th Cir. 1993) 988 F.2d 985, 988
(service under Fed. Rules Civ. Proc., rule 5(b), 28 U.S.C.); Dunn v. White (10th
Cir. 1989) 880 F.2d 1188, 1190 (objections to magistrate’s report and
recommendation); Moskovits v. Drug Enforcement Agency (D.D.C. 1991) 774
F. Supp. 649, 653-654 (response to DEA regarding claim to forfeited currency);
State v. Rosario (Ariz.Ct.App. 1999) 987 P.2d 226, 228 (notice of petition for
(Footnote continued on next page.)
22


upon the type of document filed or the nature of the litigation involved, but upon
the self-represented prisoner’s lack of control over the filing of legal documents
and upon the administrative benefits associated with the prison-delivery rule.
B.
Regardless of whether the prison-delivery rule should apply to civil
appeals, defendants argue that because the rules of court address that rule solely in
the context of criminal appeals,17 the appellate courts are constrained from
applying the rule to notices of appeal by self-represented prisoners in civil cases.

(Footnote continued from previous page.)

postconviction relief); Massaline, supra, 554 S.E.2d at pp. 721-723 (application
for certificate of probable cause to appeal denial of petition for writ of habeas
corpus); McGill v. Indiana Dep’t of Corr. (Ind.Ct.App. 1994) 636 N.E.2d 199,
202-204 (notice of tort claim under Indiana Tort Claims Act); Copestakes v.
Reichard-Copestakes
(Pa. 2007) 925 A.2d 874, 875, fn. 2 (statement of matters
complained of on appeal); see also Edwards v. United States (7th Cir. 2001) 266
F.3d 756, 758 (“We need not decide here whether there is any kind of paper, or
any circumstance, under which a district court would be entitled to hold a pro se
prisoner litigant to an actual receipt standard, but we are confident that this would
be an exceptional situation”); Tenn. Rules Civ. Proc., rule 5.06 (applying prison-
delivery rule to all “papers required or permitted to be filed pursuant to the rules of
civil procedure,” and to service of such papers).

17
This assertion is inaccurate. The prison-delivery rule embodied in rule
8.308(e) is among the rules governing criminal appeals that are incorporated by
reference into the rules governing appeals in conservatorship cases.
(Rule 8.480(a) [former rule 39(a), eff. Jan. 1, 2005].) The rules of court also
specifically apply the prison-delivery rule to juvenile appeals and notices of intent
in juvenile dependency writ proceedings. (Rules 8.400 (e) and 8.450(e)(5).)
These specific rules derive from a general rule that previously provided that the
rules governing criminal appeals, including the prison-delivery rule found in
former rules 30.1(d) and 31(e) (now rule 8.308(e)), are applicable to all appeals
from the juvenile court, unless otherwise specified. (See former rule 39(a), as
amended eff. Jan. 1, 2001; Appellate Advisory Com., Judicial Council of Cal.,
Juvenile Law: Notice of Proceedings (July 13, 2005) p. 2.)
23


We disagree. The circumstance that the rules of court presently do not apply the
prison-delivery rule to civil appeals does not persuade us that the Judicial Council
intended to proscribe such an application or to foreclose future judicial
development of the rule.
The Judicial Council, of course, is the entity charged by the California
Constitution with adopting statewide rules for court administration, practice, and
procedure. (Cal. Const., art. VI, § 6; see also Gov. Code, § 68070, subd. (b); Cal.
Rules of Ct., rule 10.1.) The California Rules of Court “ ‘have the force of statute
to the extent that they are not inconsistent with legislative enactments and
constitutional provisions.’ ” (Sara M. v. Superior Court (2005) 36 Cal.4th 998,
1011.) The rules applicable to interpretation of the rules of court are similar to
those governing statutory construction. (Maides v. Ralphs Grocery Co. (2000)
77 Cal.App.4th 1363, 1369.) Under those rules of construction, our primary
objective is to determine the drafters’ intent. (Ibid.)
Rule 8.104(b), which governs the time for filing civil appeals, provides in
relevant part that, except for public emergency situations, “no court may extend
the time to file a notice of appeal,” and that “[i]f a notice of appeal is filed late, the
reviewing court must dismiss the appeal.” (Former rule 2(e). Rule 8.308(a),
which governs the time for filing criminal appeals, also provides in relevant part
that “no court may extend the time to file a notice of appeal” except as provided in
rule 8.66 (public emergency situations). (Former rule 30.1(a).) Rule 8.308(e)
further provides as follows: “If the superior court clerk receives a notice of appeal
by mail from a custodial institution after the period specified in (a) has expired but
the envelope shows that the notice was mailed or delivered to custodial officials
for mailing within the period specified in (a), the notice is deemed timely. The
clerk must retain in the case file the envelope in which the notice was received.”
24
As is clear from this recitation, nothing in the plain language of the rules
prohibits application of the prison-delivery rule to civil appeals. The sole explicit
bar contained in the relevant rules prevents courts, both in civil and criminal cases,
from extending the time to file a notice of appeal. As our case law makes clear,
however, and as the Judicial Council’s Appellate Advisory Committee itself has
noted, the constructive filing doctrine, of which the prison-delivery rule is a
product, “does not extend the time to file a notice of appeal, but simply redefines
the point at which the notice is deemed filed.” (Appellate Advisory Com., Judicial
Council of Cal., Rep. on Revision of Appellate Rules: Fourth Installment
(July 12, 2004) p. 270.)
Defendants, like the Court of Appeal below, rely upon the maxim expressio
unius est exclusio alterius (the expression of some things in a statute necessarily
signifies the exclusion of other things not expressed), arguing that because the
Judicial Council amended former rule 31(e) in 1994 to implement the prison-
delivery rule with regard to criminal appeals only, it also must have intended that
the prison-delivery rule not apply to civil appeals. The interpretive principle cited,
however, “applies only when the Legislature has intentionally changed or
excluded a term by design.” (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th
345, 364 [concluding that the Legislature’s failure to use identical language in
various statutory provisions was neither intentional nor meaningful], superseded
on other grounds by statute as noted in Eicher v. Advanced Bus. Integrators, Inc.
(2007) 151 Cal.App.4th 1363, 1384; see also Barragan v. Superior Court (2007)
148 Cal.App.4th 1478, 1484 fn. 3 [the foregoing maxim does not apply when no
reasonable inference exists that items not mentioned were excluded by deliberate
choice]; 2A Sutherland on Statutory Construction (2007) § 47:25, p. 437
[“ ‘[F]actually there should be some evidence the legislature intended its
(expressio unius) application lest it prevail as a rule of construction despite the
25
reason for and the spirit of the enactment’ ”].) Furthermore, the principle always
is subordinate to legislative intent. (See In re J.W. (2002) 29 Cal.4th 200, 209;
Davis v. Int. Alliance etc. Employees (1943) 60 Cal.App.2d 713, 721; see also 2A
Sutherland, supra, § 47:23, p. 414.)
In this instance, we cannot conclude that the Judicial Council’s failure to
employ identical prison-delivery rule language in the criminal and civil appeals
provisions of the rules of court was intended to codify a restriction on this rule,
because it does not appear the Judicial Council ever considered, let alone
specifically rejected, application of the prison-delivery rule to civil cases. (Cf.
Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691 [legislative
history indicated that Legislature considered and rejected exemption language,
precluding judicial construction to the contrary]; Rich v. State Bd. of Optometry
(1965) 235 Cal.App.2d 591, 607 [“The rejection by the Legislature of a specific
provision contained in an act as originally introduced is most persuasive to the
conclusion that the act should not be construed to include the omitted provision”].)
Additionally, the intent of the Judicial Council with respect to the rules at
issue is otherwise quite clear. Rule 8.104(b) — which requires appellate courts to
dismiss any late-filed civil notice of appeal — does not purport to govern whether
the prison-delivery rule applies to civil appeals. Advisory Committee comments
indicate that rule 8.104(b) simply is “declarative of the case law, which holds that
the reviewing court lacks jurisdiction to excuse a late-filed notice of appeal.”
(Advisory Com. com., 23 pt.2 West’s Ann. Codes, Rules (2006 ed) foll. rule 8.104
p. 450 [citing Hollister, supra, 15 Cal.3d at p. 670, and Hanley, supra, 23 Cal.2d
at pp. 122-124].)18 As we have explained, however, the prison-delivery rule does

18
The Advisory Committee comments for rule 8.104(b) further state: “In
criminal cases, the time for filing a notice of appeal is governed by rule 8.408 and
(Footnote continued on next page.)
26


not excuse the late filing of a notice of appeal. Moreover, both Hollister and
Hanley involved civil litigants who were not incarcerated, as well as the question
of when the period for filing a notice of appeal began to run when a motion for a
new trial was made. Neither case discussed the application of the prison-delivery
rule. “ ‘It is axiomatic that cases are not authority for propositions not
considered.’ ” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388; see also
Ulloa v. McMillin Real Estate & Mortgage, Inc. (2007) 149 Cal.App.4th 333,
340.) We therefore do not distill from rule 8.104(b) any intent or purpose on the
part of the Judicial Council to prohibit application of the prison-delivery rule to
civil appeals.
With respect to rule 8.308(e), we have stated that this provision merely
“enlarges the authority of the clerk of the court to file a notice of appeal in
circumstances in which it is clear that the defendant mailed or delivered the notice
of appeal for mailing by prison officials within the 60-day limit.” (Chavez, supra,
30 Cal.4th at p. 659.) The invitation to comment on the proposed 1994
amendment that added the relevant language to what was formerly rule 31(e)
indicated that the amendment “would implement the prison delivery rule
reaffirmed in [Jordan, supra, 4 Cal.4th 116] and would improve court efficiency
somewhat.” (Appellate Advisory Com., Judicial Council of Cal., Invitation to
comment F93-1 (1993) Summary, p. 1.) When concerns were raised by

(Footnote continued from previous page.)

by the case law of ‘constructive filing.’ ” (Advisory Com. com., 23 pt. 2 West’s
Ann. Codes, Rules, supra, foll. rule 8.104, p. 450.) Defendants suggest this
comment reflects a specific intent that the prison-delivery rule not apply to civil
appeals. This argument reads too much into a comment that simply provides a
helpful cross-reference to the relevant rules governing criminal appeals.
27


commentators that the proposed language stated the prison-delivery rule
“incompletely, and might be understood as an attempt to limit that rule of case
law,” the proposed amendment was modified to make it clear that “this rule does
not limit the prison-delivery rule but merely confers new authority on the clerk.”
(Appellate Advisory Com., Judicial Council of Cal., Rep. on Appellate Rules 1,
14, 31, etc. (Oct. 28, 1993) Summary of Proposals, p. 15.) That revised language
later was moved to the Advisory Committee Comment to rule 8.308(e), which
declares that the rule “is not intended to limit a defendant’s appeal rights under the
case law of constructive filing.” (Advisory Com. com., 23 pt. 3 West’s Ann.
Codes, Rules, supra, foll. rule 8.308 p. 188, italics added [citing Jordan, supra, 4
Cal.4th 116, and Benoit, supra, 10 Cal.3d 72].) In view of this history, it cannot
be said that rule 8.308(e) was designed to prohibit or otherwise impede extension
of the prison-delivery rule to civil appeals. Rather, it is clear that the Judicial
Council intended to codify the prison-delivery rule applicable to criminal appeals,
as this rule was articulated in Jordan, supra, 4 Cal.4th 116, but to do nothing more
than that. (Cf. People v. Smith (1949) 34 Cal.2d 449, 453 [in adopting former rule
33, the Judicial Council did not create a defendant’s right to a transcript at state’s
expense, but merely recognized the law as it existed at the time].)
The Court of Appeal in Shufelt, supra, 163 Cal.App.4th 1020, similarly was
unpersuaded by the argument that the rules of court constrained it from applying
the prison-delivery rule to the filing of a notice of appeal in a civil case.
Concluding that nothing in the plain language of the pertinent rules precluded such
an application, the appellate court noted that in Jordan, supra, 4 Cal.4th 116, we
applied the prison-delivery rule to criminal notices of appeal, despite the absence
of any language in the court rules specifically authorizing such application.
Moreover, as the court noted in Shufelt, in Houston, supra, 487 U.S. 266, the high
court applied this rule to an appeal from the denial of a petition for writ of habeas
28
corpus, a matter that it considered to be civil in nature (id. at p. 272), similar to
what the court did in Moore, supra, 120 Cal.App.4th 910, in applying the rule to
the filing of a civil complaint. In both instances, as observed by the court in
Shufelt, the prison-delivery rule was applied despite the absence of any express
authorization in the relevant statutes or rules. (Shufelt, supra, 163 Cal.App.4th at
p. 1026.) The foregoing comparisons are apt. The circumstance that the current
rules of court do not expressly authorize application of the prison-delivery rule in
civil appeals does not prevent this court from extending the rule when there are
compelling reasons to do so.
Indeed, the Judicial Council has anticipated that courts would apply the
prison-delivery rule to situations in which the rule has not been previously
applied — as this court does today. In 2008, rule 8.25(b)(2) was revised to
provide: “Unless otherwise provided by these rules or other law, a filing is not
timely unless the clerk receives the document before the time to file it expires.”
(New language in italics; see also rule 8.817(b)(2) [identical rule for appellate
division of superior court].) The Advisory Committee comment to this rule also
was revised to state: “In general, to be filed on time, a document must be received
by the clerk before the time for filing that document expires. There are, however,
some limited exceptions to this general rule. For example, the rules currently
provide that if the superior court clerk receives a notice of appeal in a criminal,
juvenile, or conservatorship case or notice of intent in a juvenile dependency case
by mail from a custodial institution after the deadline for filing the notice has
expired but the envelope shows that the notice was mailed or delivered to
custodial officials for mailing before the deadline expired, the notice is deemed
timely (see rules 8.308(e), 8.400(f), 8.450(e)(5), 8.480(a)). These provisions
reflect the ‘prison-delivery’ exception articulated by the California Supreme Court
in In re Jordan (1992) 4 Cal.4th 116.” (Appellate Advisory Com. com., 23 pt. 2,
29
West’s Ann. Code, Rules (2009 supp.) foll. rule 8.25, p. 74.) The Advisory
Committee report concerning the proposed rule change further explains that the
revised rule was “intentionally drafted broadly to encompass both current and
potential future exceptions” to the general rule that a document is timely only if it
is received by the clerk before the filing deadline. (Appellate Advisory Com.,
Judicial Council of Cal., Appellate Procedure: Service and Filing (Sept. 3, 2008)
p. 3, italics added.) This development, particularly the committee’s reference to
“potential future exceptions,” further demonstrates the absence of any intention on
the part of the Judicial Council to restrict the prison-delivery rule to criminal
appeals.
III.
We established in Jordan, supra, 4 Cal.4th 116, a fundamental rule of equal
treatment and access in order to ensure that self-represented prisoners are not
denied access to the appellate courts by obstacles to the timely filing of a notice of
appeal that other litigants readily could overcome. (See also Slobodion, supra, 30
Cal.2d at p. 365 [prison-delivery rule is compelled by “reason and justice”];
Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 [“all courts have an
obligation to ensure [prison] walls do not stand in the way of affording litigants
with bona fide claims the opportunity to be heard”].) For similar reasons, we hold
that a notice of appeal by a self-represented prisoner in a civil case is deemed filed
as of the date the prisoner properly submits the notice to prison authorities for
forwarding to the superior court.19 Plaintiff’s notice of appeal in the present
case — delivered to prison authorities in the manner prescribed for transmitting

19
We further recommend that the Judicial Council review the relevant rules
of court to determine whether any revisions might be appropriate or helpful in
light of our decision in the present case.
30


legal mail, and before expiration of the 60-day jurisdictional period provided for
an appeal — therefore was timely.
In light of the conclusions reached, we do not address the remaining
contentions raised by the parties. The judgment rendered by the Court of Appeal
is reversed, and the matter is remanded to that court for further proceedings not
inconsistent with this opinion.

GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

31


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Silverbrand v. County of Los Angeles
__________________________________________________________________________________

Unpublished Opinion

XXXNP opn. filed 4/21/06 – 2d Dist., Div. 8
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143929
Date Filed: April 23, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Frank Y. Jackson

__________________________________________________________________________________

Attorneys for Appellant:

Peter Silverbrand, in pro. per.; Horvitz & Levy, under appointment by the Supreme Court, David S.
Ettinger and John A. Taylor for Plaintiff and Appellant.

Eisenberg and Hancock, Jon B. Eisenberg, Charles A. Bird, Jay-Allen Eisen, Dennis A. Fischer, Steven L.
Mayer, Douglas R. Young and Michael Traynor for California Academy of Appellate Lawyers as Amicus
Curiae on behalf of Plaintiff and Appellant.

Clare Pastore; Heller Ehrman, Stephen N. Goldberg and Jesse P. Sisgold for American Civil Liberties
Union of Southern California as Amicus Curiae on behalf of Plaintiff and Appellant.

Dunn Koes, Pamela E. Dunn and Daniel J. Koes for Los Angeles County Bar Association as Amicus
Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Thever & Associates, Ronald A. Chavez; Pollak, Vida & Fisher and Daniel P. Barer of Defendants and
Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

David S. Ettinger
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

Jon B. Eisenberg
Eisenberg and Hancock
180 Montgomery Street, Suite 2200
San Francisco, CA 94104
9415) 984-0650

Daniel P. Barer
Pollak, Vida & Fisher
11150 W. Olympic Boulevard, Suite 980
Los Angeles, CA 90067
(310) 551-3400


Petition for review after the Court of Appeal dismissed the appeal in a civil action. This case presents the following issue: Does the "prison delivery" rule apply to the filing of a notice of appeal in a civil case, and thus make timely a notice of appeal deposited in the prison legal mail system before the expiration of the jurisdictional deadline but not received by the trial court until after that deadline has passed?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 04/23/200946 Cal. 4th 106, 205 P.3d 1047, 92 Cal. Rptr. 3d 595S143929Review - Civil Appealclosed; remittitur issued

4 Cal.4th 116
15 Cal.3d 660
23 Cal.2d 120
10 Cal.3d 72
30 Cal.2d 362
163 Cal.App.4th 1020


Parties
1Silverbrand, Peter (Plaintiff and Appellant)
P.O. Box 8457
Lancaster, CA 93539

Represented by David S. Ettinger
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA

2County Of Los Angeles (Defendant and Respondent)
Represented by Daniel P. Barer
Pollak Vida & Fisher
11150 W. Olympic Boulevard, Suite 980
Los Angeles, CA

3County Of Los Angeles (Defendant and Respondent)
Represented by Ronald Anthony Chavez
Attorney at Law
6 Thirty-eighth Place
Long Beach, CA

4Piratla, Viswanatham (Defendant and Respondent)
Represented by Daniel P. Barer
Pollak Vida & Fisher
11150 W. Olympic Boulevard, Suite 980
Los Angeles, CA

5Piratla, Viswanatham (Defendant and Respondent)
Represented by Ronald Anthony Chavez
Thever & Associates
900 Wilshire Boulevard, Suite 1200
Los Angeles, CA

6Piratla, Viswanatham (Defendant and Respondent)
Represented by Randolph M. Even
Randolph M. Even & Associates
5550 Topanga Canyon Blvd., Suite 280
Woodland Hills, CA

7Napier, Cheryl (Defendant and Respondent)
Represented by Daniel P. Barer
Pollak Vida & Fisher
11150 W. Olympic Boulevard, Suite 980
Los Angeles, CA

8Napier, Cheryl (Defendant and Respondent)
Represented by Ronald Anthony Chavez
Thever & Associates
900 Wilshire Boulevard, Suite 1200
Los Angeles, CA

9Napier, Cheryl (Defendant and Respondent)
Represented by Randolph M. Even
Randolph M. Even & Associates
5550 Topanga Canyon Blvd., Suite 280
Woodland Hills, CA

10California Academy Of Appellate Lawyers (Amicus curiae)
Represented by Jon B. Eisenberg
Eisenberg & Hancock, LLP
1970 Broadway, Suite 1200
Oakland, CA

11American Civil Liberties Union Of Southern California (Amicus curiae)
Represented by Stephen Ned Goldberg
Dickstein Shapiro LLP
2049 Century Park E. Ste 700
Los Angeles, CA

12Los Angeles County Bar Association (Amicus curiae)
Represented by Pamela E. Dunn
Dunn Koes, LLP
336 S. Euclid Avenue
Pasadena, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Disposition
Apr 23 2009Opinion: Reversed

Dockets
May 30 2006Petition for review filed
  Appellant Peter Silverbrand in pro per
Jun 5 2006Received Court of Appeal record
 
Aug 2 2006Time extended to grant or deny review
  to Aug. 28, 2006.
Aug 16 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 22 2006Counsel appointment order filed
  The law firm of Horvitz and Levy is hereby appointed pro bono to represent appellant on the appeal now pending in this court. Appellant's biref on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 8 2006Request for extension of time filed
  to October 23, 2006 to file appellant's opening brief on the merits by David S. Ettinger
Sep 13 2006Extension of time granted
  To Oct. 23, 2006 for appellant (Silverbrand) to file the opening brief on the merits
Oct 12 2006Request for extension of time filed
  Appellant, Peter Silverbrand. Asking to Nov. 7 2006 to file the opening brief on the merits by counsel, David S. Ettinger.
Oct 13 2006Extension of time granted
  to November 7, 2006 to file appellants opening brief on the merits.
Nov 6 2006Opening brief on the merits filed
  Appellant, Peter Silverbrand by counsel, David S. Ettinger.
Nov 6 2006Request for judicial notice filed (granted case)
  Appellant, Peter Silverbrand by counsel, David S. Ettinger.
Nov 28 2006Request for extension of time filed
  to file answer brief/merits to 1-5-07 Attorneys Ronald A. Chavez & Daniel P. Barer
Dec 8 2006Extension of time granted
  to January 5, 2007 to file respondent County of Los Angeles, et al., answer brief on the merits.
Jan 3 2007Answer brief on the merits filed
  Respondents County of Los Angeles, etal Attorneys Daniel P. Barer and Ronald A. Chavez
Jan 8 2007Request for extension of time filed
  Appellant, Peter Silverbrand, asking to Feb. 2, 2007,to file the reply brief. by counsel, David S. Ettinger.
Jan 10 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 2, 2007.
Feb 2 2007Reply brief filed (case fully briefed)
  Peter Silverbrand, Appellant by David S. Ettinger, Counsel
Feb 26 2007Received application to file Amicus Curiae Brief
  California Academy of Appellate Lawyers in support of Appellant ( Silverbrand). by counsel, Jon B. Eisenberg.
Mar 1 2007Permission to file amicus curiae brief granted
  The application of California Academy of Appellate Lawyers for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 1 2007Amicus curiae brief filed
  California Academy of Appellate Lawyers in support of appellants. Answer due within 20 days. by counsel, Jon B. Eisenberg.
Mar 2 2007Request for extension of time filed
  By Los Angeles County Bar Association requesting a two week extension to file amicus brief in support of appellant.
Mar 5 2007Received application to file Amicus Curiae Brief
  American Civil Liberties Union of Southern California [in support of aplt] Attorneys Stephen N. Goldberg & Clare Pastore
Mar 7 2007Extension of time granted
  On application of amicus curiae Los Angeles County Bar Association and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of appellant is extended to and including March 19, 2007.
Mar 7 2007Received application to file Amicus Curiae Brief
  American Civil Liberties Union of Southern California in support of appellant. by counsel, Stephen N. Goldberg.
Mar 14 2007Permission to file amicus curiae brief granted
  The application of American Civil Liberties Union of Southern California for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 14 2007Amicus curiae brief filed
  American Civil Liberties Union of Southern California in support of appellant. by counsel, Stephen N. Goldberg.
Mar 16 2007Request for extension of time filed
  to April 10, 2007 to file respondents (County of Los Angeles, et al.) reply to the Amicus Curiae Brief of the California Academy of Appellate Lawyers and American Civil Liberties Union of Southern California. by Daniel P. Barer, counsel
Mar 21 2007Received application to file Amicus Curiae Brief
  Los Angeles County Bar Association in support of Appellant. by counsel, Pamela E. Dunn.
Mar 23 2007Extension of time granted
  to April 10, 2007 to file respondent ( County of Los Angeles ) Amicus Curiae Briefs.
Mar 27 2007Permission to file amicus curiae brief granted
  The application of Los Angeles County Bar Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenthy days of the filing of the brief.
Mar 27 2007Amicus curiae brief filed
  Los Angeles County Bar Association in support of appellant.
Apr 10 2007Response to amicus curiae brief filed
  to AC brief of California Academy of Appellate Lawyers, etal Respondents County of Los Angeles, Viswanatham Piralta, MD, and Cheryl Napier
Apr 18 2007Filed:
  Letter from David S. Ettinger, counsel for Petitioner Silverbrand re: scheduling of oral argument.
May 2 2007Filed:
  letter form Attorney Daniel P. Barer for respondent, County of Los Angeles re :scheduling of oral argument
Apr 4 2008Change of contact information filed for:
  Attorney Daniel P. Barer, Respondents' counsel
Dec 10 2008Case ordered on calendar
  to be argued on Wednesday, January 7, 2009, at 9:00 a.m., in San Francisco
Dec 12 2008Application filed
  "Request to Continue Oral Argument" filed by Daniel P. Barer, counsel for respondents County of Los Angeles, et al.
Dec 16 2008Argument rescheduled
  to be called and continued from the January oral argument session to a future calendar
Jan 5 2009Note: Mail returned and re-sent
 
Jan 6 2009Case ordered on calendar
  to be argued on Tuesday, February 3, 2009, at 9:00 a.m., in Sacramento
Jan 7 2009Cause called and continued
  to be argued on Tuesday, February 3, 2009, at 9:00 a.m., in Sacramento
Jan 8 2009Note: Mail returned and re-sent
  Ronald Anthony Chavez, retained counsel for County of Los Angeles, no longer at old address: Thever & Assocaites, 900 Wilshire Boulevard, Suite 1200, Los Angeles, CA 90017
Jan 15 2009Application filed
  Request for permission to divide oral argument time filed by Peter Silverbrand, counsel for appellant Silverbrand. asking to share 10 minutes with amicus curiae California Academy of Appellate Lawyers
Jan 16 2009Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae California Academy of Appellate Lawyers 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
Jan 21 2009Supplemental brief filed
  Appellant, Peter Silverbrand by counsel, David S. Ettinger.
Jan 29 2009Request for judicial notice granted
  Appellant's request for judicial notice, filed November 6, 2006 is granted.
Feb 2 2009Association of attorneys filed for:
  Respondents - County of Los Angeles, et al. hereby associate in as counsel of record Randolph M. Even. by Daniel B. Barer, counsel for respondents
Feb 3 2009Cause argued and submitted
 
Apr 22 2009Notice of forthcoming opinion posted
 
Apr 23 2009Opinion filed: Judgment reversed
  and remanded. Opinion by George, C.J. ----joined by Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
May 27 2009Remittitur issued
 
Jun 4 2009Received:
  receipt for remittitur CA 2/8.

Briefs
Nov 6 2006Opening brief on the merits filed
 
Jan 3 2007Answer brief on the merits filed
 
Feb 2 2007Reply brief filed (case fully briefed)
 
Mar 1 2007Amicus curiae brief filed
 
Mar 14 2007Amicus curiae brief filed
 
Mar 27 2007Amicus curiae brief filed
 
Apr 10 2007Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
Defendants Answer Brief on the Merits.pdf (7589690 bytes) - Defendants' Answer Brief on the Merits
application/pdf icon
Appellant Supplemental Brief.pdf (1949776 bytes) - Appellant's Supplemental Brief
application/pdf icon
ACLU Amicus Curiae Brief.pdf (2637627 bytes) - ACLU Amicus Curiae Brief
application/pdf icon
Cal Academy of Appellate Lawyers Amicus Curiae Brief.pdf (2178739 bytes) - California Academy of Appellate Lawyers Amicus Curiae Brief
application/pdf icon
LA County Bar Association Amicus Curiae Brief.pdf (3114292 bytes) - LA County Bar Association Amicus Curiae Brief
application/pdf icon
Defendants Response to Amici Curiae Briefs.pdf (4532723 bytes) - Defendants' Response to Amici Curiae Briefs
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 18, 2011
Annotated by clinton martin

-Facts-

Peter Silverbrand was an inmate at California State Prison in Los Angeles County. He filed a medical malpractice suit in 2003, and the trial court granted the defendants’ motion for summary judgment.

Mr. Silverbrand attempted to file a notice of appeal by handing a stamped and addressed envelope containing the necessary paperwork to a correctional officer in his prison one day before the deadline to file the notice. The envelope was mailed to the court, but the court clerk stamped the notice of appeal as filed three days later – two days after the deadline.

The Court of Appeal, at the defendants’ urging and after finding that the prison-delivery rule does not apply in civil cases, dismissed the appeal as untimely.

-Procedural history-

The California Supreme Court granted Mr. Silverbrand’s petition for review of the Court of Appeal’s dismissal of the appeal as untimely.

-Issues-

Whether the prison-delivery rule, which applies to notices of appeal in criminal cases, also applies to civil notices of appeal. The prison-delivery rule deems timely filed a notice of appeal in a criminal case from a self-represented prisoner if the prisoner submits it to prison authorities within the period allowed by the California Rules of Court.

-Holding-

The prison-delivery rule applies to a notice of appeal filed by a self-represented prisoner in a civil case. The notice is deemed constructively filed as of the date the prisoner submits the notice to prison authorities. Therefore, Mr. Silverbrand’s notice of appeal was timely filed.

-Analysis-

The court decided that there was no reason the prison-delivery rule should apply in criminal cases but not in civil cases. The same motivations apply in both civil and criminal cases.

Prisoners, whether they are involved in a criminal case or a civil case, cannot personally mail or hand-deliver a notice of appeal. They must rely on the prison authorities to transmit the notice for them. After a prisoner hands the notice of appeal to the prison authorities, it is out of the prisoner’s control, and the prisoner typically is not able to monitor the mail or call the court to confirm that the notice was received. When the prisoner is self-represented, he has no attorney to rely on to do so, either.

In addition, the courts benefit from having the prison-delivery rule apply both in criminal and civil cases. The bright-line rule provided by the prison-delivery rule avoids collateral litigation on the propriety of the notice and also reduces uncertainty for court clerks.

The prison-delivery rule gives self-represented prisoners the same opportunity to file a notice of appeal as is enjoyed by nonprisoners and prisoners represented by attorneys. This same motivation applies whether the matter being appealed is civil or criminal.

-Key Related Cases-

In re Jordan (1992) 4 Cal.4th 116
http://scholar.google.com/scholar_case?case=5620852880860284440

Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660
http://scholar.google.com/scholar_case?case=17612644012245447756

Estate of Hanley (1943) 23 Cal.2d 120
http://scholar.google.com/scholar_case?case=14897721847316206974

In re Benoit (1973) 10 Cal.3d 72
http://scholar.google.com/scholar_case?case=14136710106240487185

People v. Slobodion (1947) 30 Cal.2d 362
http://scholar.google.com/scholar_case?case=15521648305204094886

Shufelt v. Hall (2008) 163 Cal.App.4th 1020
http://scholar.google.com/scholar_case?case=15354750003479467393

-Tags-
prison delivery rule
prison mailbox rule
constructive filing
civil
appeal
post
mail
mailbox
prison
prisoner
jail

By Clinton Martin