The Supreme Court yesterday issued an alternative writ. That doesn’t happen too often, but it wouldn’t be particularly newsworthy . . . except the alternative writ’s recipient is a Court of Appeal. That is in the man-bites-dog category.
The subject of the proceeding is one that is near and dear to the hearts of California’s appellate practitioners — whether parties to an appeal have the unfettered right to stipulate to a 60-day extension of a briefing deadline. The Supreme Court’s alternative writ implies what a Rule of Court expressly provides — the parties do have that right.
In Aaronoff v. Olson, briefing in the Second District, Division Two, Court of Appeal had been substantially delayed by a number of stipulated and/or court-granted extensions, as well as use of rule 8.220 grace periods. The respondent’s brief was filed 11 months after the (relatively small) record on appeal.
So, when the parties presented Division Two with a stipulation to extend by 60 days the time to file the appellant’s reply brief, the Court of Appeal’s patience had worn thin. It ruled, “Given the numerous extensions previously requested and granted, the parties request for consolidation of these cases, the limited scope of a reply brief, and the Court’s need to manage its calendar, the court exercises its discretion under rule 8.68, California Rules of Court, and the stipulation for extension is partially granted.” Division Two ordered the reply brief to be filed by December 2 instead of the stipulated December 16 due date.
The plaintiff responded by filing an original writ petition in the Supreme Court — Aaronoff v. Court of Appeal (Olson). After requesting and receiving an informal response to the petition from the Court of Appeal, the Supreme Court yesterday 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.
The Supreme Court did the right thing.
Rule 8.68, which Division Two cited in not fully accepting the stipulated extension, provides, “For good cause and except as these rules provide otherwise, the Chief Justice or presiding justice may shorten the time to do any act required or permitted under these rules.” However, when it comes to shortening stipulated extensions, rule 8.212(b)(1)&(2) does “provide otherwise.” It says that, “[e]xcept as otherwise provided by statute . . . , the parties may extend each [briefing deadline] by up to 60 days by filing one or more stipulations in the reviewing court before the brief is due,” that a “stipulation . . . is effective on filing,” and that “[t]he reviewing court may not shorten a stipulated extension.”
When the rule 8.212 language was adopted, a 2004 Advisory Committee Comment explained:
“[The former rule] specified the periods within which the parties were required to file their briefs, but then provided that ‘By stipulation filed with the reviewing court the parties may extend each of such periods for not more than 60 days, and thereafter the time may be extended only by the Chief Justice or Presiding Justice, for good cause shown.’ The plain implication of the quoted provision, recognized in widespread practice, was that the parties had the right to effectuate such extensions for up to 60 days on their own accord by filing such a stipulation in the reviewing court, and that the stipulation required no action by the reviewing court to be effective. In addition, the former rule did not contemplate the reviewing court’s exercising discretion over the length of a stipulated extension for the first 60 days; on the contrary, any inference of such a discretion was negated by the wording of the provision itself, which declared that ‘the parties may extend each of such periods’ for up to 60 days and that it was only ‘thereafter’ that a further extension would require action by the reviewing court. [The] [r]evised rule . . . continues these provisions in effect but clarifies their wording. It is therefore not a substantive change.”
The right to stipulate to a 60-day extension is not on a par with the “unalienable Rights [of] Life, Liberty and the pursuit of Happiness,” but, to appellate lawyers, it is considered pretty darn important.
And it must have been the principle of the thing for plaintiff to seek Supreme Court relief. Nine days elapsed between the Court of Appeal’s order — shortening the stipulated extension by 14 days — and the filing of the writ petition. With the stipulated extension, plaintiff would have had 80 days to file her reply brief. It’s unclear how spending nine days to file a Supreme Court writ petition instead of using that time to draft the reply brief, thereby in effect gaining only an additional five days, was necessary.
Interesting side note: In a declaration supporting her writ petition, the plaintiff identified herself as the “Doe” in Olson v. Doe (2022) 12 Cal.5th 669, where the Supreme Court held two parties’ agreement “not to disparage one another,” made in settling a restraining order proceeding, did not prevent one party from later suing the other for sexual assault and harassment (see here).