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I am appellant. I filed the Opening Brief on 4/25 and respondents

I am appellant. I...
I am appellant. I filed the Opening Brief on 4/25 and respondents filed Responding Brief 5/29 =4- day past due without requesting time extension and without even offering an excuse.

Q1: They violate Rule 8.212 (2) bcs theirs were due 4/25 (30 days). Dont they?

Q2: If Yes, then can their briefs be denied pursuant to this Rule?

Many thanks/
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Answered in 22 minutes by:
5/31/2013
CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10,244
Experience: Civil litigation attorney for individuals and businesses.
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William B. Esq. :

Dear Customer, thank you for choosing Just Answer. You are correct, there was a violation of the rule. Unlike the deadline for filing your notice of appeal however, the Court may exercise its discretion in accepting this brief even though it was filed late. To object to it, you may file a motion to the court asking that the court quash the brief, but it is more common practice to argue the late filing in the appellant's reply brief.

William B. Esq. :

If the other side has not argued any "good cause" to the court for why it did not file on time (or request an extension, which is almost always granted at the appellate level for the first request), the Court may not be inclined to accept the arguments prepared in the late brief (this will give much more weight to your opening brief and the arguments and facts as you have stated them, it does not necessarily mean the Court will rule in your favor on the appeal).

William B. Esq. :

Although the other party appears to have prepared their brief poorly, it is always wise to submit a full and complete opposition or reply to the arguments contained in the brief as you do not want to rely on judicial discretion alone. (Furthermore, many issues raised in the brief may be the same as the ones raised by the Court in making its determination, it is good practice to have responses prepared for them in your reply brief).

Customer:

Understood. Thank U very much for yr thorough answer.

William B. Esq. :

You are welcome. I do wish you the best of luck with this matter. Please let me know if you have any further questions regarding this issue.

William B. Esq. :

Best regards, Bill.

William B. Esq. :

Dear Customer,


Thank you for the kind rating, it is greatly appreciated. I wish you the best of luck with this matter. If you have further questions regarding this type of issue, or any other legal matter, please do not hesitate to use our service in the future. You may post a question for any of our experts in general, or to me directly by titling your question “To CalAttorney 2…”


Best regards, XXXXX XXXXX you,


Bill

CalAttorney2
CalAttorney2, Attorney
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Customer reply replied 4 years ago

Hi Bill,


 


This is a follow-up from the previous Q.


 


Facts: Although respondents’ brief were due 5/25, the court clerk filed them 5/29, and then he issued a 15-day Notice to give them the extra time.


I recall but cannot locate the rule that provides such 15-day notice.


 


Question: Can U locate it? Does it mean an automatic 15-day extension for respondents, Or such filing violate Rule 8.18. (Documents violating rules not to be filed)?


 


Many thanks/

Dear Customer,

It appears that the Court has applied its discretion under Cal. Rules of Court 8.142(d)(1).

This section gives the party that failed to properly file its brief time to cure the default, and a warning that if it does not the appeal will be decided solely on the appellant's brief and oral argument.

http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_412
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Customer reply replied 4 years ago


I hv just looked over it and found in (3) of that section 8.142 (d) that U cite, that it requires respondents to show good cause for such extension. Thus the 15-day Notice does not imply an automatic extension. Here respondents filed a tardy brief quietly (w/out offering any excuse) as though the extension were automatic.


 


Question: I mean their tardy briefs must first be denied, then after the 15-day Notice, they must file "good cause" before such "discretion" can be exercised. Am I right?


 


 


 

No, they actually get a 30 day notice ("warning letter") to comply. If they do not comply within the 30 days, the case will be decided without them.

Section (1) describes the warning letter and the sanctions that will be imposed for a failure to comply, and section (2) says what happens if they fail to comply with the warning letter (the sanctions described in section (2) will be imposed).
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Customer reply replied 4 years ago

But to "comply" here means they must show "good cause". Otherwise it would mean an automatic extension without any need to show good cause. Am I right?

No, the party may apply to the court for an additional extension of time if they show good cause for time beyond the 30 days.

(3)Within the period specified in the notice under (1), a party may apply to the presiding justice for an extension of that period for good cause
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Customer reply replied 4 years ago

OK, then do I understand correctly that there is an implicitly automatic 15-day extension, hence respondents hv done nothing wrong?

Rule 8.220. Failure to file a brief

(a) Notice to file

If a party fails to timely file an appellant's opening brief or a respondent's brief, the reviewing court clerk must promptly notify the party by mail that the brief must be filed within 15 days after the notice is mailed and that if the party fails to comply, the court may impose one of the following sanctions:

(1)If the brief is an appellant's opening brief, the court may dismiss the appeal;

(2)If the brief is a respondent's brief, the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.

That is a correct understanding.
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Customer reply replied 4 years ago

No, I take it back. It's not correct to say that respondents did nothing wrong. Obviously they filed the tardy briefs without offering an excuse. But the automatic 15-day extension gives them a chance to correct their wrong.


The fact they offered no excuse shows their disrespect for the court. And that's wrong.


 


 


 


 

I agree with the sentiment. (There are many judges and justices that share the same - but the rules are drafted to allow the hearing or appeal to proceed on the merits of the case).
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Customer reply replied 4 years ago

Many thanks again. Hv a good day/

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