Metropolitan News-Enterprise


Friday, December 2, 2005


Page 3


C.A. Clarifies Rule on Late Filing of Appellate Briefs


By a MetNews Staff Writer


A party that is late in filing an appellate brief need not request an extension or move for relief from default if the brief is filed prior to expiration of the time stated in a notice threatening dismissal, the Fourth District Court of Appeal has ruled.

In a Nov. 4 opinion, certified yesterday for publication, Div. One rejected a developer’s motion to dismiss an appeal from the dismissal of a writ petition challenging one of its projects. The trial court’s order of dismissal was affirmed, however.

The petitioner, the Black Historical Society, challenged a permit issued to Wakeland Housing and Development to construct low-income apartments in the East Village District of San Diego. The historical society objected that a part of the project would be built on a local Historic Resource site and claimed that the project vioalted CEQA and local environmental regulations.

San Diego Superior Court Judge Linda B. Quinn ordered the proceedings expedited on the motion of the developer, which complained that it faced the loss of its state and federal tax credits as well as its performance deposit if it failed to begin construction by Nov. 15 of last year.

The society, after becoming embroiled in a dispute as to who was to pay for the preparation of the administrative record, failed to file its opening brief, and its petition was dismissed.

The society’s opening brief was due in February, but an extension was granted, The society then requested a second extension to pursue settlement.

Wakeland responded that it was not in negotiations and would not settle the matter, and the court ordered the society to file its opening brief by April 4. The society complained that the Court of Appeal was not impartial, and asked the California Supreme Court to transfer the case to another district.

The petition was denied, and a copy of the denial was filed in the Court of Appeal April 18. The opening brief was filed the next day.

The brief was timely, Presiding Justice Judith McConnell wrote.

“California Rules of Court, rule 17, subdivision (a) requires a notice be sent when a brief is not timely filed stating the brief must be filed within 15 days or the appeal could be dismissed,” the presiding justice explained. “ Essentially, there is a 15-day grace period; a party need not file for an extension or relief from default if the brief can be filed within the time prescribed by rule 17....

“We consider the Society’s brief to be timely filed within the rule period.”

The jurist went on, however, to say that the trial judge was correct in dismissing the petition. Given the construction deadline, the expedited briefing schedule was reasonable, and it was incumbent on the petitioner to assure prompt preparation of the administrative record, either by paying for it or seeking a waiver or delay of its obligation to pay from the trial judge, McConnell explained.

The case is Black Historical Society v. City of San Diego (Wakeland Housing and Development), 05 S.O.S. 5276.


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