The COVID-19 emergency extension orders — issued by the Courts of Appeal with the Chief Justice’s authorization — have complicated the calculation of dates for filing petitions for review in the Supreme Court. We mentioned some of the complications. Here’s another.
Even though they’re Court of Appeal orders, they affect Supreme Court petitions for review because the times when a petition can first and last be filed are measured from the date a Court of Appeal decision is final (rule 8.500(e)(1)) and the orders extend the finality times of some decisions. The trick is figuring out which finality times are extended.
The latest wrinkle is owing to some ambiguity in the Court of Appeal extension orders. All six districts’ orders are essentially the same, saying in pertinent part, “All time periods specified by the California Rules of Court that occur during the time period between April 20, 2020 [or April 17, 19, or 22, depending on the district], through and including May 18, 2020, are hereby extended for 30 days from the date of the specified event.”
The orders create finality uncertainty about Court of Appeal decisions that are filed less than 30 days before the extension period ends on May 18. (Not including decisions that are final immediately, which are not covered at all by the extension orders.)
Take an opinion filed on April 20, for example. On the one hand, the 30-day finality period (rule 8.264(b)(1)) for the opinion is one of the “periods . . . that occur during the time period” between April 20 and May 18; at least, almost all of it does occur during that time period. On the other hand, the “date of the specified event” — from which the extension runs — is May 20, and that is (just) outside the April 20-May 18 period.
So, is an April 20 opinion’s finality extended by 30 days or not? According to an answer provided to appellate lawyer Steven Renick by a Second District, Division One, clerk, it’s not. Only finality dates falling before May 19 are extended, the clerk said.
The clerk’s interpretation causes a Court of Appeal anomaly. Because the 15-day time to petition for rehearing of an April 20 opinion does fall within the April 20-May 18 period, that period is extended by 30 days, until June 4. But, the opinion becomes final on May 20 and the appellate court can’t rule on the petition after that date. (Rule 8.268.) A party could thus file a timely rehearing petition that the court has no jurisdiction to grant.
The interpretation can also create weirdness at the Supreme Court, too. Rule 8.500(c)(2) says, “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.” A party could thus timely call to the Court of Appeal’s attention an omission or misstatement by June 4, even though they will have already filed a petition for review in the Supreme Court, a petition that is due by June 1.
These problems can still be avoided for opinions filed less than 30 days before the extension period ends on May 18. The Court of Appeal districts could renew their extension orders for another 30 days on the Chief Justice’s authorization under rule 8.66(c).
Or there could be an authoritative interpretation that any period occurring in whole or in part within the 30 days before May 18 are extended regardless of when the period ends. That interpretation probably wouldn’t have been necessary if the extension orders had provided, “All time periods specified by the California Rules of Court that occur during the time period between April 20, 2020 [or April 17, 19, or 22], through and including May 18, 2020, are hereby tolled
extended for 30 days from the date of the specified event.” (Tolling, as well as extensions, is now allowed under newly amended rule 8.66.)