Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension.
In Aaronoff v. Olson, the Second District, Division Two, apparently felt that briefing had gone on long enough. Due to a number of extensions and a consolidation motion after the record was completed, by the time the respondent’s brief was filed an alarming 11 months had passed.
So when the parties stipulated to a 60-day extension for the reply brief—which, combined with the 20-day period for that brief, would give the appellant 80 days to file that limited brief—the court pumped the brakes. the court “exercises[d] its discretion under rule 8.68, California Rules of Court” to partially grant the 60-day request, granting 46 days instead.
That was October 11.
On October 20, the plaintiff filed an original writ petition in the Supreme Court, Aaronoff v. Court of Appeal (Olson).
On December 9 (seven days after the reply brief was due, and was filed), the Supreme Court issued an alternative writ directing Division Two “(i) to vacate its . . . order, which partially granted the parties’ stipulated extension for petitioner to file a reply brief, and to issue a new order giving effect to the parties’ stipulated extension as filed, under California Rules of Court, rule 8.212(b)(2), providing petitioner until December 16, 2022 to file an amended reply brief, or (ii) in the alternative, to show cause before this court why it has not done so.”
The same day, the Court of Appeal changed the reply brief due date to December 16.
When the parties to an appeal stipulate to a briefing extension provided under California Rules of Court, rule 8.212, “[t]he reviewing court may not shorten a stipulated extension.”
Thanks to David Ettinger for reporting on this case. See his post for a more detailed legal analysis of extensions under rule 8.212.
Disclaimer: I joined an amici curiae brief filed with the Supreme Court on December 5, urging the Court to grant the requested relief.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.