Legal Question in Appeals and Writs in California

What are the allowable grounds for recalling a default remittitur in a civil appeal? Being indigent and with cognitive disability, I am an involuntary pro se appellant. I asked for a extension but mistakenly did not sign the form. When I called the court at the end of the extension period (which I wrongly assumed had been granted), I found out that my appeal was dismissed for failure to file the opening brief. I was preparing to move for reconsideration and found that the successful cases were ones in which the brief was filed with the motion. So I continued to prepare the brief. My computer crashed and it turns out it was improperly backed up. I lost everything. Not knowing about the length of time between the dismissal and the issuance of remittiturs, I continued to work away until I today received the remittitur. Do I have any chance to successfully move for recall of the default remittitur?


Asked on 8/27/14, 7:09 pm

2 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

You have a chance if you can show that the appeal was dismissed due to an error by the court -- for example, if it failed to serve you with the order denying your extension request and/or the dismissal order. A motion based on your own error would be less likely to succeed. Either way, I don't know how good your chances might be. Your odds will likely improve quite a bit if competent appellate counsel brings the motion for you.

I'm one of the relatively few California lawyers who are certified as appellate specialists by the State Bar's Board of Legal Specialization. (Last time I checked, there were fewer than 300 of us among the roughly 200,000 lawyers in this state.) I have more than 20 years of relevant experience. Feel free to contact me directly if you'd like to discuss your case.

Good luck.

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Answered on 8/27/14, 7:50 pm
James Goff James R. Goff, Attorney at Law

Your chances are slim and your explanation for the failure to perform is not compelling. It was a mistake not to inform the appellate court of your oversight early in the process. You need to explicitly explain to the court the reasons for your oversight in detail and indicate why you think your appeal has merit if heard. The court treats in pro pers as if they were competent attorneys and are reluctant to accept pleas of incompetence as an excuse. Explain why you thought your extension was granted. Normally, the court returns unfiled motions as yours would have been. You don't explain why the return of the unfiled motion did not alert you to the defect. Your delay in addressing the defect to prepare the brief needs more information an explanation based on "my dog ate the homework" will not be accepted. Good luck!

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Answered on 8/29/14, 11:02 am


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