Long before briefs are due, an appellant has a number of required preliminary filings and fee payments. Failure to complete any of these filings or payments will result in issuance of a default letter that may result in dismissal of the appeal for failure to cure the default.
You may have multiple concurrent defaults in the same appeal, as several common procedural errors result in a default. Defaults issued by the trial court include failure to pay the filing fee when the Notice of Appeal is filed, failure to file the Designation of Record or to pay the fees for the preparation of transcripts when the designation is filed in the trial court.
Common missed appellate filings, which result in a default, include failure to file any of the following documents:
• Civil Case Information Statement
• Mediation Case Screening Form, Statement or Questionnaire (The name of the mediation document and the procedure varies depending on the appellate district.)
• Quarterly Bankruptcy Status Reports
There may be other types of defaults, such as failure to timely comply with tasks as ordered by the appellate court.
What should you do when you receive a default letter? Cure the default or file a motion?
You should take whatever actions are needed to complete the filing or pay the fees within the time stated in the default notice. The notice will usually state that the appellant has “X” number of days to cure the default or the appeal will be dismissed. If you complete the needed task within the time allotted, the appeal continues. If you don’t cure the default in the allotted time, the appeal is dismissed.
If the default notice is issued by the trial court for failure to pay fees or designate the record, it gets a little tricky. You may cure the default if the initial notice from the trial court states the filing or payment must be made within 10 or 15 days from the date of the notice. When that time expires, the trial court notifies the Court of Appeal. Once the Court of Appeal is notified, the trial court is barred from accepting any filing or payment to cure the default. A Motion for Relief from Default is required requesting the Court of Appeal to order that the default be vacated so the fee or designation may be filed in the trial court.
Multiple defaults may run concurrently with different deadlines. Dismissal may occur for failure to cure any of these. While preparing a Motion for Relief from Default, the Court may have dismissed the appeal for another reason. If you file the motion seeking relief from default, it will not be granted as it does not request the proper relief or it may not address all the defaults. The better practice is to file a “Motion for Relief from all Defaults and to Vacate any Dismissal,” anticipating that a dismissal might occur while the motion is pending. It also avoids the need for multiple motions.
These motions need a Memorandum of Points and Authorities, an attorney declaration that sets forth facts justifying and supporting the requested relief (as to each default) and a proposed order. The declaration needs to identify and state the foundation for any supporting exhibits. Usually a motion, based on mistake, inadvertence or excusable neglect under CCP § 473 will be granted. However, if you have multiple or repeated defaults, eventually the court will not grant relief and the dismissal will stand.
The time for filing motions to vacate dismissals vary depending on the appellate district court. The Third Appellate District treats the motion as a Petition for Rehearing under C.R.C. Rule 8.268(b) which must be filed within 15 days of the order of dismissal. In other districts, the motion must be filed within 30 days of the order.
No relief once the decision becomes final – finality of decision
If you wait too long to file, you will be barred, due to lack of jurisdiction. Once the decision becomes final, the Court loses jurisdiction and cannot modify the ruling. Rule 8.264(c)(1) provides that a reviewing court may modify a decision until the decision becomes final in that court. Rule 8.264(b)(1) states, “Except as provided in this rule a Court of Appeal decision in a civil appeal, including an order dismissing an appeal involuntarily, is final in that court 30 days after filing.”
If you have any questions or need assistance with preparing and filing your appeal, please do not hesitate to contact me directly. Counsel Press provides a full spectrum of appellate services. My colleagues and I at Counsel Press’ office in Los Angeles specialize in rule-compliant appellate filings (including electronic filings and electronic submissions) in the California Supreme Court and Court of Appeal, the United States Circuit Court of Appeals and the United States Supreme Court.