The Overlong Brief and the Motion to Strike
An appellant filed a 15,000-word opening brief in a California Court of Appeal case. The applicable rule limits the opening brief to 14,000 words. The appellant did not seek permission to exceed the limit. The respondent filed a motion to strike the brief as untimely and overlong. The appellant argues that the brief is timely because it was filed within 40 days of the notice of appeal, and that the word limit is directory, not mandatory. The appellant also argues that the respondent's motion is procedurally defective because it was not accompanied by a meet-and-confer declaration. The court has not yet ruled on the motion.
1. What is the likely outcome of the motion to strike? What rules govern the word limit and the timing of the brief?
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Under California Rules of Court, rule 8.204(c), an opening brief must not exceed 14,000 words. The limit is mandatory. A party may apply for permission to exceed the limit, but must show good cause. The appellant did not seek permission. The brief is overlong. The court has discretion to strike the brief or to require the appellant to file a new brief that complies with the limit. The court may also impose sanctions. The timing of the brief is governed by rule 8.212(a), which requires the appellant to file the opening brief within 40 days after the notice of appeal is filed. The appellant's brief was timely. However, the word limit violation is a separate issue. The motion to strike is likely to be granted unless the court exercises its discretion to allow the overlong brief. The respondent's motion is not defective for lack of a meet-and-confer declaration because the rules do not require one for a motion to strike an overlong brief. The court may strike the brief and order the appellant to file a compliant brief.
2. If the court strikes the brief, what are the appellant's options?
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The appellant may file a new opening brief that complies with the 14,000-word limit. The appellant may also seek permission to file an overlong brief, but must show good cause. The appellant could also seek relief from default under rule 8.60. If the appellant fails to file a compliant brief, the court may dismiss the appeal. The appellant should also consider whether the respondent's motion was timely. The appellant may request an extension of time to file a new brief.