California Appellate Law Blog : California Appellate Lawyer & Attorney: Archer Norris Law Firm: Trial, Business, Torts: Sacramento, Bay Area, Los Angeles, California

California’s economic downturn means that public works projects are fewer in number and smaller in scale as local and state agencies grapple with reduced funding. As a result, public works bidding is more fiercely contested than ever. A recent decision provides a good example. (Schram Construction Inc. v. The Regents of the University of California (2010) 187 Cal.App.4th 1040.)

In Schram, the University sought bids for the design and construction of the mechanical, electrical and plumbing work for UCSF Medical Center at Mission Bay. The bidding was structured around multiple packages and trades. The University used the “best value” method, a modified approach awarding the bid to the bidder with the best ratio between bid price and best-value-questionnaire score. (See Public Contracts Code § 10506.5(g).) The idea is that this method incorporates and weighs factors other than the bid price, resulting in the best contractor being selected from among the lowest bidders. 

After the first set of bids were received and reviewed, the University decided that the bidding should be redone. In addition to the original six bid packages, the University invited bids on three alternative packages. It also changed the weights given to various factors used to calculate the best value scores. Schram Construction Inc. (SCI) initially bid on just two independent bid packages. Later, SCI did not bid on any of the new, alternative packages, choosing instead to bid on three of the separate bid packages. Two of its separate bids, if combined, covered one of the alternative bid packages: the HVAC (heating, ventilating and air conditioning) and plumbing for the Energy Center and Outpatient Building. But the University awarded that work to another bidder on the grounds that SCI did not bid the alternative package. As a result, SCI was not even considered for that work.

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Failure to timely file a notice of appeal is fatal.  There is no relief.  Sixty days is a long time.  But is the clock ticking?  When did it start to run?  When does it run out?  Are you sure?

Under California Rules of Court,rule 8.104, the clock starts ticking when either of two things happens: the clerk mails or a party serves - a document entitled “notice of entry” of judgment or a file-stamped copy of the judgment.  If it is the clerk, the document must show the date it was mailed.  If a party, the document must be accompanied by a proof of service.  The 60-day deadline starts running from the mail (clerk)/service (party) date.  But if neither the clerk mails nor the party serves notice, a 180-day “outer limit” is allowed to file the notice of appeal.  Warning, it is rare that no notice occurs, so proceed with extreme caution.

The 60 day time limit is also subject to extension under rule 8.108.  Under that rule, timely and valid motions for new trial, to vacate judgment, JNOV, and to reconsider an appealable order, can result in extensions.  But if there is a procedural minefield, this is the place.  And the mines explode with surprising frequency.  When they do, there are no survivors.

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So you are thinking of appealing.  In California’s state courts, initiating an appeal requires a final judgment or an appealable order.  An order is appealable if either a statute expressly says so or it carries the same effect as a final judgment.  Hmnn, getting complicated already.  A good place to start is Code of Civil Procedure section 904.1.  Listed there, for example, is an order granting a new trial or denying a JNOV motion.  So is an order granting or denying an injunction.  So too, an order granting or denying an anti-SLAPP motion.  But a preliminary order that is followed by a final judgment is not an appealable order. 

The difference between a final judgment and an order that is not appealable can seem slight.  For example, an order granting a motion for summary judgment or sustaining a demurrer without leave to amend may look and sound final to the losing party, but is not an appealable order.  The ensuing judgment disposing of the action, however, is appealable.  Likewise, an order denying summary judgment is not directly appealable, but may be appealed from the final judgment.  (Waller v. TJD Inc. (1993) 12 Cal.App.4th 830, 836.)  But be careful, given the subsequent trial on the merits, a writ should be considered in order to avoid the denial of summary judgment being viewed as harmless error when the appeal is finally taken.  (Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269-1270.)            

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