What Happens If You File Your Appellate Brief After Its Deadline?

California’s rules of appellate court procedure allow some room for error, but only in limited circumstances. This is true with respect to certain deadlines. A late brief filing, for example, will usually trigger a curable 15-day default period. However, the one deadline that cannot be extended is the date to file the notice of appeal. Violating this will prove fatal to your appeal.

At Gusdorff Law, we understand the deadlines and rules surrounding the California appeal process. And we know what it takes to keep your appeal on track.

What Happens if a Party Fails to File a Mandatory Brief?

The answer to this question is contained in Rule 8.220 of the California Rules of Court. Failure to timely file the appellant’s opening brief or the respondent’s brief triggers a default period. The court clerk must promptly notify the late party, in writing, that it has 15 days to file. The clerk’s notice shall inform the late party that failure to then file may result in one of the following sanctions:

  • If the brief is the appellant’s opening brief, the court may dismiss the appeal
  • If the brief is the respondent’s brief, the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant

Later in the rule, a provision can be found allowing an extension of this time. Within the 15-day default period, a party can ask the presiding justice to extend the 15 days. The defaulting party must present good cause for this request, so it’s not automatic. If the extension is allowed, but the late party still doesn’t file, the above sanctions can be imposed without notice. The sanctions can also be imposed without notice if no extension is requested or allowed and the 15 days elapse.

Do not simply assume that you can file a brief 15-days late, however. Appellant reply briefs are considered “optional” briefs, and therefore, do not trigger a grace period. If you need additional time to file the reply brief, you must either stipulate with opposing counsel, or request additional time from the court.

What if the Court Dismisses the Appeal?

As mentioned above, the court may dismiss the appeal if the appellant doesn’t file the opening brief. If this happens, the appellant can file a motion to vacate the dismissal. Upon demonstrating good cause, and in the absence of extraordinary circumstances, the court may reinstate the appeal. Still, this is not a chance the appellant wants to risk. The diligent appellate practitioner will always be mindful that time is of the essence at all stages of the appeal.

Notice of Appeal: the One Deadline That Cannot Be Extended

It’s worth noting that the above grace period does not extend to notices of appeal. While mandatory briefs can be filed late, the notice of appeal cannot. For more about this, we turn to Rule 8.104(b):

Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.

Contrast the rather forgiving language of Rule 8.220 and the harsh terms contained here. “No court” may extend the time to file a notice of appeal. There’s no curable default period as with late briefs. So if the notice of appeal is late, the court “must” dismiss the appeal.

The above-mentioned Rule 8.66 allows time extensions for the notice of appeal in public emergencies. California’s last major public emergency was the coronavirus pandemic, and “public health crisis” is in fact mentioned in 8.66.

Other examples are earthquakes and fires. But, of course, although earthquakes and fires are increasingly common in California, it is extremely rare for these events to constitute public emergencies within the meaning of Rule 8.66. In the overwhelming majority of cases, a late notice of appeal is fatal. The court will dismiss the appeal and leave the appellant with no legal recourse.

Guiding Every Aspect of Your Appeal From Start to Finish

Deadlines, defaults, grace periods, extensions. These are the words and phrases with which the astute appellate practitioner is intimately familiar. And they all have a real and consequential bearing on your California state appeal.

Don’t get lost in the details, however. That’s an obligation your experienced appellate attorney will gladly handle for you. And that’s the guarantee of Gusdorff Law. Ready to get started on your appeal? Call us today.

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