Timely File the Brief or File an EOT – Don’t Use 8.360(c)(5) Time!
Both the Third and the Fifth Districts have a very rigorous approach to the timely filing of briefs. Attorneys who have not practiced in these districts before should be aware that these districts are very willing to enforce their approach. Because the Third and the Fifth District Courts of Appeal take these filing deadlines seriously, CCAP urges panel attorneys to take these deadlines seriously too, and to recognize that regularly ignoring court deadlines does not serve the interests of the client and can potentially harm counsel’s good standing with CCAP and/or the court.
Neither court allows rule 8.360(c)(5) [formerly known as 17(a) time] as a “grace period” for filing the opening brief. [The same is true for dependency fast-track appeals. (Rule 8.416(g).] If counsel cannot file the brief by the court’s deadline, an extension of time (EOT) should be filed. If counsel ignores this interpretation of the rules in the Third and the Fifth, both courts will notify the appointed attorney of his or her responsibility to proceed in a professional fashion. Each court may set a very short deadline for filing the brief (the Third usually issues a 10-day notice) before it issues an order to show cause why the attorney should not be held in contempt, relieved without payment for work done, and not appointed in future cases. However, counsel should be watching their own calendars and not relying on the late letters before filing an EOT. These letters are looked upon with disfavor both by the court and by CCAP for performance evaluation purposes.
Timing EOT & MTA and Court Policies
Look at a comparison of the Procedural Policies of the Third vs. Fifth District on completing, supplementing and formally augmenting the record. This chart is a “living document” of current policies and appointed counsel working in these courts are expected to be familiar with its content and check for updates.
If the record is incomplete, the preferred practice of the Third and Fifth is that a motion to augment be filed within the first 30 days of appointment and before the filing of an extension of time. In the Fifth, appointed counsel must meet the augment deadline set in the appointment order. If counsel cannot do so, an explanation is required when the late augment motion or an initial EOT is filed. Press of business – as in case work in other courts unless unplanned and unavoidable – is not an acceptable reason by itself. These courts want to be assured that counsel is making progress on their cases as much as possible. The key is to explain how the case due dates line up and where the current case fits into that calendar. Other augment procedures are set forth in a separate article called, “The Appellate Record Checklist.”
Timely Filing the EOT & Whether to Call the Court Clerk if Racing the Clock?
Because of this interpretation of rules 8.360(c)(5) and 8.416(g), the extension motion should be timely filed, meaning it should be filed at least one day before the brief is due, not merely submitted. Although the requirement is that the EOT be at the court the day the brief is due, the courts do not like last minute requests. For both courts, when an extension request is being submitted very close to the filing deadline, counsel should call the court clerk to advise that an extension request will be submitted and when. This type of communication is appreciated. An EOT filed via TrueFiling after the due date without an explanation for the tardiness will likely be denied and a late letter issued.
Have You Ever Had Your EOT Denied?
The denial of an extension of time request can create havoc in your schedule. A timely EOT will avoid the pain of having an EOT denied, but still leave room for filing a brief. Otherwise, counsel will either have a choice of filing a hurried document (if there is still time) or be precluded from filing anything at all.
Tips to avoid this stress: First, do not assume that an EOT will be granted, especially if a prior extension was granted but stamped “No Further Time.” Second, allow enough time for the extension request to be processed by the court in a timely fashion. In the Third and the Fifth District courts, if an EOT is denied for a reply brief, the deadline is not extended; if the EOT is denied for an opening brief, the deadline may be moved by only a few days, if at all. Third, do not assume the prior EOT date requested was granted; read the order! Was it shortened? Finally, it is unlikely that a relief from default motion will be granted.
What Factors Should be Included in an EOT?
The standards for time extensions are set forth in Rules of Court, rule 8.63. Specific reference to the factors in the rule is recommended. The request must be supported by a fairly detailed factual showing and should relate counsel’s need for more time to the factors of the current case in which the request is being made. In other words, counsel should provide an explanation of what work has been done on this case and how much remains to be done. The court may deny requests which do not describe the size of the record, and provide some information as to the number and complexity of the issues.
One factor that could bear upon the success of the motion is the occurrence of matters which counsel could not have reasonably anticipated would arise in the time period and which must be given priority (e.g., jurisdictional time limitations on petitions for review). In contrast, an EOT based on a vague statement or conclusion, such as the press of other business or other case deadlines may be denied. The concern is that counsel should not take on cases which exceed his or her ability to complete cases in the normal time they should require.
If counsel requests an extension of time before filing an application to augment or supplement the record, and it appears that such a request for additional records is likely to be made, the extension request must be clearly identified as a pre-augmentation extension request and justification must be given for deviating from the normal sequence (e.g., the record is unusually lengthy). Otherwise, both the Third and the Fifth District expect an augment motion or a rule 8.340(b) request to the trial court before any EOT motions are filed.
In addition to the factors cited in rule 8.63 which apply to appointed counsel’s case, the request for extension of time must state: (1) the present due date of the document to be filed; (2) whether any earlier extension requests have been granted, and if so, their lengths; and (3) the length of the extension requested with a date certain to which time should be extended. (See Cal. Rules of Court, rule 8.60(c).) This date should not fall on a weekend or it is likely to be cut back to the last workday of the week preceding the date requested. Also, the extension of time request must be signed under penalty of perjury.
Drafts submitted to a CCAP staff attorney too close to the court’s deadline are likely to require an extension; however, “time for CCAP to review the draft,” is disfavored as a reason and does not carry much weight. Similarly, when an EOT is needed because counsel is requesting that CCAP conduct a Wende review, counsel should avoid saying so, as it tends to disparage any issues that counsel may ultimately raise. Instead, counsel should specify what has been accomplished to date, what date the draft was sent to CCAP, and request additional time to finalize the brief.
How Much Time to Request?
If counsel seeks more than a 30-day extension, both courts require a showing of exceptional need in much the same way (e.g., a particularly lengthy record); however, they diverge in their approach as to how the time should be requested. In the Third District, the court wants an assessment of the time is will take to produce a brief (and then stick to it). So 30 days, 42 days, 55 days, whatever is a real date is acceptable for an EOT with this court. However, the flip side of that: get it timely filed if that is what was requested to finish the brief. The Fifth District prefers successive requests at 30-day increments but will entertain longer increments when reasonably justified.
Conversely, requesting only a 10-day or two-week extension, is not favored by either court. The courts would prefer to handle one extension for 30 days, rather than two short-extension requests.
Both districts will generally grant an initial 30-day extension request in the ordinary case. (An “ordinary record” is roughly one volume of clerk’s transcript and two volumes of reporter’s transcripts; however, that is merely a general guideline for counsel’s reference, and the court attaches significance to the number of pages rather than the number of transcripts in considering the size of the record as a basis for an EOT.) When it may not be possible to gauge the additional time needed, it is advisable to provide notice that a further request may be required. However, a second EOT should be an exception. If granted, both courts will generally limit such extensions with a statement that no further time will be granted. Since second extension requests are not granted as a matter of course but are scrutinized, CCAP may contact counsel on second extension requests or more which do not appear to be clearly justified in the articulated reasons. This action may be taken either pursuant to CCAP policy or in response to an inquiry by the courts.
Appeals in all juvenile cases are entitled to priority and counsel should avoid requesting extensions altogether if at all possible. In juvenile matters involving child custody, and particularly in matters involving termination of parental rights, no routine extension of time is likely. (See Cal. Rules of Court, rule 8.416(f); Code Civ. Proc., § 45.) In permanency planning cases, it is helpful to review the Fifth District’s case of In re Kristin W. (1990) 222 Cal.App.3d 234. (Contra: see In re Tammy H. (1992) 11 Cal.App.4th 48, 51; In re Steven H. (1992) 6 Cal.App.4th 1752, 1756-1761; In re Taya C. (1991) 2 Cal.App.4th 1, 8; and In re Elizabeth M. (1991) 232 Cal.App.3d 553, 562-563.)
In the event that counsel finds himself or herself in the position of needing additional time after the court has indicated “no further time will be granted absent exceptional good cause,” the court considers whether there are unexpected extenuating circumstances warranting the additional request. Informing the court of what work has been completed since the last extension request is of immense importance. In addition, although not required, the better practice under these circumstances is to include language that counsel is now committed to filing the brief within the time requested. Even if granted, be sure to check the date granted as it may be shorter than what was requested.
Motion Format for EOTs
Both courts utilize the JCC’s standard EOT form which can be difficult to use because it is not in a fillable form. A user-friendly fillable PDF can be found in our Motion Samples book.
For both courts, use of the court form is not mandatory, however the courts appreciate and prefer its use.
If counsel chooses not to use the court’s EOT form, the application should include an approval line stating, “It is so ordered,” as well as a signature line for the presiding justice at the bottom of a full page or at least a half-full page (i.e., the court will not sign a blank page that could be removed and separated from the motion). Do not add any additional or unique wording to the “It is so ordered” line (e.g., “It is so ordered until ___” is not helpful). If possible, the Third District prefers a one-page request to reduce processing time. In the Fifth District, counsel is urged to replicate the court’s standardized EOT form, rather than create another format.
Keep CCAP Informed
Keeping CCAP informed of your extension requests by proof of service is an important part of counsel’s responsibility as an appointed attorney. Therefore, when sending an EOT to the court, counsel should always serve CCAP. This will save the CCAP staff attorney from contacting counsel to check on the status of the brief and filing.
Counsel can contact the CCAP staff attorney assigned to the case when deadline problems arise and counsel needs to file an unexpected extension request. This is especially important in assisted cases where counsel has not yet submitted a draft of the AOB to the assigned staff attorney for the case.
One final caveat is that sometimes the contents of an extension request may raise ethical considerations, specifically when an extension request is necessary because time is needed to communicate with the client regarding a potential adverse consequence. Counsel needs to provide the court good cause for requesting additional time, and yet, counsel has an ethical duty not to disclose client confidences. (Bus. & Prof. Code, § 6068, subd. (e)(1); Dixon v. State Bar (1982) 32 Cal.3d 728, 735.) Confidences include things which arise during the course of employment, protected by the attorney-client privilege, and that might be detrimental to the client.
Counsel should expect that both the court and opposing counsel will read the supporting reasons for the extension request. Accordingly, counsel may not disclose an adverse consequence in the EOT. It is recommended use of other language to inform the court that the extension is necessary to discuss an issue with the client and/or that the opening brief cannot be filed without the client’s input concerning a potential issue, using language that will inform the court that you are in current communication with your client and that feedback is necessary on an issue – yet the nature and extent of the confidential matter is not disclosed.
Along these same lines, in the Third District, if the appointment is an assisted case, counsel should mention that in the EOT because CCAP-processing in that timeline will automatically be taken into consideration by the court.