If a party in a CA case files an appeal of a motion order, but fails to serve any documents relating to the appeal, can the responding party file a motion requesting that the court dismiss that appeal for failure to serve?
3 Answers from Attorneys
Most motion rulings are not appealable. I'll assume for now that this one was.
Whether your motion to dismiss would succeed will depend on what the appellant failed to serve you with. The court could just order him to cure the problem by serving you. The longer this has gone on and the more documents you were not served with, the more likely a dismissal will be.
I would need more details before I could assess your chances. Please feel free to contact me directly if you want to discuss your case in more detail. I have many years of experience in appeals and writs, and am certified as an appellate specialist by the State Bar of California Board of Legal Specialization -- a certification held by just 284 of the roughly 200,000 lawyers practicing in this state.
Typically, assuming a valid appeal, there are not many documents required to be served. The notice of appeal must be served. The designation of the record on appeal should be served but the reviewing court can relieve a default on procedural failures except the notice of appeal. Other documents come from the court or require the parties to obtain. The key here may be whether the failure to serve was within appropriate time lines. In appellate practice there are timelines for every step in the process. Dismissal becomes an issue if the timelines have not been complied with by the appellant. The reviewing court has discretion in resolving procedural failures. A party may seek dismissal if the rules have not been complied with by the other party.
The court of appeal is not going to dismiss someone's appeal because a document did not get served. They'll either ask for a proof of service prior to accepting the document or order the party to serve the document.
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