Appellate Procedure,  Relief from Default

The patience of the Court of Appeal has its limits

S is for Sloth
If your attorney moves like this sloth, you’ve got trouble.
Tim Jones via Compfight

I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground supported by the record), but there is a second lesson to glean from the case, regarding the limits of the appellate courts’ patience with counsel’s untimely submissions.

In general, deadlines for appellate briefs are easily extended. One usually sees the limits of an appellate court’s patience in an order granting an extension, with the admonition NO FURTHER EXTENSIONS. Even that may not be the end of the court’s patience. If you miss that deadline, there’s always California Rules of Court, rule 8.60(d), which provides that “For good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal or a timely statement of reasonable grounds in support of a certificate of probable cause.” (Emphasis added.)

Younessi provides an example of what does not constitute good cause. The respondent missed the deadline for his brief, then filed for relief seven months after the blown deadline and barely two weeks before the scheduled oral argument. Though respondent had a series of at least three lawyers representing him on the appeal, neither respondent’s original attorney (Wass) nor his successors filed the brief or even moved promptly for relief from the default:

This court has the discretion to grant relief from a party?s failure to timely file a brief “[f]or good cause.” (Cal. Rules of Court, rule 8.60(d).) However that phrase may be defined (see Cal. Rules of Court, rule 8.63), plaintiffs’ request does not qualify. The motion and its supporting declarations reflect the legal representation provided by plaintiffs’ current attorneys is little better than that provided by Wass. Casey admittedly knew in August that Wass had failed to timely file the respondents’ brief, but when he substituted in as plaintiffs’ counsel a month later, he still took no action to seek relief from this default. Rather, Casey waited another month and a half for Wass to prepare the brief. Even then, nothing was done for another two weeks when plaintiffs associated in a second attorney. Once the motion for relief from default was prepared, it took another two weeks to file it with this court.

Unless multiple attorneys for a party are working together and communicating well about their respective responsibilities, and holding each other accountable, “more” does not equal “better.”