Briefing,  Publication/Depublication

Should a respondent always move to strike a defective appellant’s opening brief?

A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party’s brief if it fails to comply with this or other requirements of rule 8.204. (Rule 8.204(e)(2).) A leading practice guide advocates that a respondent should immediately file a motion to strike an appellant’s opening brief, that is “so defective that it appears likely the appellate court will order it stricken in whole or in part [.]” (Eisenberg, Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2016), ¶ 5:196.) But is that always the case?

Consider that a successful motion to strike is likely to give the appellant a “second bite at the apple” (and sometimes a third or fourth bite, if later briefs are also stricken), allowing the appellant to improve the quality of his brief. This is so because a Court of Appeal has only three options if it agrees the brief is noncompliant:

(A) Order the brief returned for corrections and refiling within a specified time;
(B) Strike the brief with leave to file a new brief within a specified time; or
(C) Disregard the noncompliance.

(Rule 8.204(e)(2).) Instead of giving the appellant that chance to file a better brief, might it make more sense, at least in some circumstances, to forego a motion to strike, use the respondent’s brief to attack the opening brief’s deficiencies, and let those deficiencies take down the appeal?

That appears to be the approach taken by the respondent in Ewald v. Nationstar Mortgage, LLC, case no. C081760 (3d. Dist June 28, 2017, ordered published July 27, 2017), a plaintiff’s appeal from a judgment following the defendant’s successful motion for summary judgment. Respondent never moved to strike the appellant’s opening brief, but its own brief led off with the argument that the judgment should be affirmed because appellant had failed to support his arguments with authority, and the arguments should thus be deemed abandoned. In a brutal page-and-a-half opinion that summarizes the “egregious violations of basic appellate norms” contained in appellant’s opening brief, the court agrees with respondent that “the opening brief does not satisfy counsel’s duty to provide adequate legal authority to support this appeal,” and affirms the judgment “without discussing the merits.”

This tactic won’t always work. First, it might not deprive appellant of a chance to improve the opening brief, because The Court of Appeal might strike the brief on its own motion. (See Rule 8.204(e)(2).) More importantly, the tactic of foregoing a motion to strike in favor of using the respondent’s brief to raise the defects might be dangerous. This tactic should probably be invoked only when case law and the record of the division in which the appeal is pending make it nearly certain the defect will be deemed an abandonment of issues. If there is any ambiguity about whether the defects constitute an abandonment of issues, I would err on the side of caution and move to strike immediately, especially if the brief is so unclear that it is hard to address the points raised in it.

One final note about Ewald. The opinion was originally unpublished, but later certified for publication. The online record for the case shows no intervening request for publication from either party, suggesting that the Court of Appeal eventually decided on its own this case should serve as a warning to appellants to file briefs that conform to rule 8.204.

Update (8/21/17): A reader suggests that the approach in Ewald may sometimes be adopted for reasons of cost and timing rather than strategy. In other words, why go to the expense of a separate motion to strike when success means that the appeal is dragged out by the time the appellant is allowed to re-file a compliant brief? Addressing the opening brief’s noncompliance in the respondent’s brief may be the respondent’s most cost-effective option as well as the one least likely to drag out the appeal.