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
(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.