Legal Question in Appeals and Writs in California
I was the defendant in a lawsuit in the Superior Court of California, in and for the County of Santa Clara. In November 2010 I was granted a judgment in my favor, after a trial by court. On January 24, 2011, plaintiff filed an appeal in the 6th appellate district. Appellant used various tactics, including 2 formal requests for extension of time, to delay the filing of appellant�s opening brief.
The last request for extension of time by appellant for an additional 15 days was granted by the court on December 7, 2011.
However, 15 more days after that court imposed deadline of December 22, 2011 to file the opening brief granted by the court have now passed and this opening brief has still not been filed.
My question, is there a simple Judicial Council approved standard form that I can file to ask the court to dismiss this appeal for lack of prosecution?
If there is no standard form, what other documents besides a motion are required to be filed to dispose of this action? Are there any samples motions, etc. available for modification and use in this case? Thank you very much.
4 Answers from Attorneys
Normally the court will order the dismissal on its own. Wait about one month and then phone the Clerk if nothing has happened.
You generally have to do nothing and the appellate court will do it for you
The Court of Appeal will not dismiss because the opening brief is not yet late. All parties in the California Court of Appeal get an automatic 15 day extension of time after the final deadline pursuant to Rules of Court. Those 15 days do not begin to run until the court clerk sends out a notice of default, and often the clerk will wait days or even weeks after the "deadline" to send out that notice. All experienced appellate attorneys (myself included) consider this to be a "grace period" that we routinely reply on. It is only if the appellant fails to file the brief within that 15 days grace period that the Court of Appeal will consider dismissing the case.
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I agree with Mr. Fox. You need to the check the Court of Appeal's website for your case, and find out if the Court of Appeal has issued the default letter. His automatic last 15 day extension runs from the date that letter is issued. Once that runs, the court clerks will automatically dismiss the appeal on the court's own motion. At that point, you have to watch and hope that the appellant does not file a motion to set aside the dismissal, and then be prepared to oppose it.
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