Hire an attorney or a paralegal to create a blank "Motion to Dismiss Appeal" brief that complies with the rules for the court of appeals that received the untimely brief, or research these rules yourself. Different courts of appeal provide different guidelines. Sometimes, certain judges have rules specific to their courtroom.
California's courts consider an appeal untimely if it was filed more than 60 days after the superior court or filing party filed a Notice of Entry. They also consider an appealing untimely if it was filed more than 180 days after judgment was entered. You can beat an untimely appeal simply by requesting the court dismiss it, because California law prohibits a judge from accepting an untimely appeal unless a public emergency such as an earthquake or fire prevented a party from filing.
Write an introduction that sets forth the relevant dates. Provide the appeals court with the date that judgment was entered, or the Notice of Entry was posted. Include the date the appeal was filed, and provide the court with the number of days separating the two dates. Write, for example, "The trial court entered judgment on January 1, 2010 and ACME filed its brief on January 1, 2011 -- a full 365 days after entry of judgment."
Cite California Rule of Court 8.104 (a & b) and explain that the court may not accept an untimely appeal. Write, for example, "Pursuant to California Rule of Court 8.104 (a) (3), a Notice of Appeal must be filed no more than 180 days after entry of judgment. Accordingly, the court must dismiss the appeal pursuant to California Rule of Court 8.104.(b)."
Write a factual statement setting forth the basic facts of the case in two or three paragraphs. Explain why and when the case was filed. Explain that the trial court ruled in your favor, and the losing party filed an untimely appeal.
Write a conclusion that briefly states that court should accept the appeal. For example; write "California law expressly provides no remedy for a party that has filed an untimely appeal. Accordingly, the court should dismiss the appeal without further argument."
Attach copies of all relevant documents to the appeal, such as the Notice of Judgment or Notice of Entry.
Send a copy to the party that appealed, and to the relevant court of appeals, following the rules set forth in Rule 8.25 of the California Rules of Court.
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