Tag Archives: california court of appeal

COVID-19 and Emergency Extensions of Time in California State Courts (Just In Case)

In these troubling times of COVID-19, it’s useful to be reminded that the California Rules of Court have for some time contained provisions addressing extensions of time based on public emergencies and the illness of counsel.

Two rules in particular speak to this issue. Rule 8.63 of the California Rules of Court directs that the court “must consider” “illness of counsel” or “a personal emergency,” among many other factors, in determining good cause for a requested extension of time. (Cal. Rules of Court, rule 8.63(b) (10).) The rule also directs that “[i]f good cause is shown, the court must extend the time.” (Rule 8.63(a)(3).) And on a broader scale, Rule 8.66 authorizes the Chair of the Judicial Council (i.e., the Chief Justice of the California Supreme Court) to extend the time “to do any act required or permitted under the rules” up to 60 days on a statewide basis, if necessary.

Here’s the text of the rules:
Rule 8.63. Policies and factors governing extensions of time
(a) Policies
(1) The time limits prescribed by these rules should generally be met to ensure expeditious conduct of appellate business and public confidence in the efficient administration of appellate justice.
(2) The effective assistance of counsel to which a party is entitled includes adequate time for counsel to prepare briefs or other documents that fully advance the party’s interests. Adequate time also allows the preparation of accurate, clear, concise, and complete submissions that assist the courts.
(3) For a variety of legitimate reasons, counsel may not always be able to prepare briefs or other documents within the time specified in the rules of court. To balance the competing policies stated in (1) and (2), applications to extend time in the reviewing courts must demonstrate good cause-or an exceptional showing of good cause, when required by these rules-under (b). If good cause is shown, the court must extend the time.
(b) Factors considered
In determining good cause-or an exceptional showing of good cause, when required by these rules-the court must consider the following factors when applicable:
(1) The degree of prejudice, if any, to any party from a grant or denial of the extension. A party claiming prejudice must support the claim in detail.
(2) In a civil case, the positions of the client and any opponent with regard to the extension.
(3) The length of the record, including the number of relevant trial exhibits. A party relying on this factor must specify the length of the record. In a civil case, a record containing one volume of clerk’s transcript or appendix and two volumes of reporter’s transcript is considered an average-length record.
(4) The number and complexity of the issues raised. A party relying on this factor must specify the issues.
(5) Whether there are settlement negotiations and, if so, how far they have progressed and when they might be completed.
(6) Whether the case is entitled to priority.
(7) Whether counsel responsible for preparing the document is new to the case.
(8) Whether other counsel or the client needs additional time to review the document.
(9) Whether counsel responsible for preparing the document has other time-limited commitments that prevent timely filing of the document. Mere conclusory statements that more time is needed because of other pressing business will not suffice. Good cause requires a specific showing of other obligations of counsel that:
(A) Have deadlines that as a practical matter preclude filing the document by the due date without impairing its quality; or
(B) Arise from cases entitled to priority.
(10) Illness of counsel, a personal emergency, or a planned vacation that counsel did not reasonably expect to conflict with the due date and cannot reasonably rearrange.
(11) Any other factor that constitutes good cause in the context of the case.

Rule 8.66. Extending time because of public emergency
(a) Emergency extensions of time
If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may:
(1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or
(2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules.
(b) Applicability of order
(1) An order under (a) must specify whether it applies throughout the state, only to specified courts, or only to courts or attorneys in specified geographic areas, or applies in some other manner.

How Long Does a California Civil Appeal Take?

Based on the 2017 California Court Statistics Report, the statewide median time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion is 506 days (about 17 months), with 90% of appeals processed within 842 days (28 months). But the median times differ substantially between California’s six appellate districts, and even between divisions within districts. Currently, the fastest California appellate court is Division 5 of the Second District in Los Angeles, with a median time of 404 days to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in Division Five are processed in 622 days.

At the other end of the spectrum is currently the Sixth District in San Jose, with a median time of 731 days (a little over two years) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Sixth District are processed in 1,168 days (a little over 3 years).

The complete 2017 Court Statistics can be found here.

And while we’re discussing statistics, what are your chances for success on appeal? For civil appeals terminated by a written opinion in FY 2015-16, 17% were reversed. And if you decide to seek review in the California Supreme Court, less than 4% of petitions for review were granted by the Supreme Court in 2015-16.

Duane Morris Partner Paul Killion to Present at California State Bar’s Inaugural Appellate Summit

Duane Morris’ San Francisco partner Paul Killion will be speaking October 14, 2017, at the inaugural Appellate Summit organized by the newly reconstituted California State Bar Litigation Section’s Committee on Appellate Courts.

Paul’s panel will address “When Things Go Wrong: Challenges and Strategies for Appeals from Jury Trials.” His co-panelists are California Court of Appeal Justice Kathleen Banke of the First District, Division One, and Syda Cogliati, Senior Appellate Research Attorney for the Sixth District. Paul is an appellate specialist certified by the California Board of Legal Specialization.

Duane Morris is a sponsor of the Appellate Summit.

For more information and to register, visit the California State Bar website.

How Long Does a California Civil Appeal Take?

Based on 2016 California court statistics, the time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion differs substantially between California’s six appellate districts, and even between divisions within districts. The fastest California appellate court currently is Division 6 of the Second District in Ventura, with a median time of 423 days (a little over 14 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the court are processed in 667 days (a little over 22 months).

At the other end of the spectrum is the Third District in Sacramento, with a median time of 693 days (a little over 23 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Third District are processed in 1,107 days (a little over 3 years).

Statewide, the median time to process civil appeals for all California appellate courts is 518 days (a little over 17 months), with ninety percent of all civil appeals processed statewide on average in 846 days (a little over 28 months).

Why the discrepancy between courts? Filings per justice explain much, but so does backlog. The Third District, for example, has far and away the largest number of pending appeals per justice.

And while we’re discussing statistics, what are your chances for success on appeal? If you’re the appellant, they’re pretty slim. Only 10% of civil appeals were reversed statewide in 2014-15. And if you decide to seek review in the California Supreme Court, it’s even more of a longshot—only 6% of petitions for review from civil appeals were granted by the Supreme Court in 2014-15.

The complete 2016 statistics can be found here.

Don’t Wait Until Appeal To Respond To Your Opponent’s Evidentiary Objections

California appellate courts continue to work through application of Reid v. Google (2010) 50 Cal.4th 512 to evidentiary objections raised in summary judgment proceedings. For those facing this issue—either in the trial court or on appeal—a new decision by Division Three of the Second District is a must read. (Tarle v. Kaiser Foundation Health Plan Inc. (2nd Dist., Div. 3, May 22, 2012 No. B224739) __Cal.App.4th__.)

Continue reading Don’t Wait Until Appeal To Respond To Your Opponent’s Evidentiary Objections

If You’ve Ever Encountered A Difficult Court Clerk, Here’s Your Case

If you have ever run into a court clerk who seems set on making things difficult, take comfort in a December 14, 2011 decision issued by the California Court of Appeal for the Sixth District, Voit v. Superior Court of Santa Clara County, __Cal.App.4th__(December 14, 2011) (No. H037034). There, the clerk refused to accept for filing a request for appointment of counsel in a civil case submitted by an incarcerated and indigent individual. Four times Voit tried to get the Court to accept the filing and each time it was rejected for a claimed deficiency, the last few times with a note explaining that the court does not assign counsel for civil matters and requesting authority to the contrary.

Continue reading If You’ve Ever Encountered A Difficult Court Clerk, Here’s Your Case