Q: What to do when counsel agrees in writing to a stipulation, but doesn't execute, KNOWING my filing deadline is coming up
Defense counsel said, in an email, that she would stipulate to extend the time I have to respond to defendants' latest filing by x no. of days, and asked that I draft and send a proposed stipulation, which I did within 24 hrs. The proposed stipulation, accompanied by an order, which I emailed to her and her co-counsel, briefly covers the events that give rise to "good cause" for the extension. However, I neither got back an executed copy of the stipulation (to file with the court), nor any communication as to why they are now (it appears) balking. She knows time is of the essence because in her email she herself suggested we do this electronically to save time. Since I have only about a week left to file my responsive pleading, should I just go ahead and file a motion with the court seeking an extension for good cause before my time runs out and becomes another complication I don't need? I have a feeling counsel is either playing games or not taking me seriously because I'm pro se.
A:
Under California law, if you have an email from the defense counsel agreeing to the stipulation, you can file an ex parte application for an extension of time to file your responsive pleading. Here are the steps you should take:
1. Draft an ex parte application explaining the situation, including the reasons for the extension and the email correspondence showing the defense counsel's agreement to the stipulation.
2. Attach the email correspondence and the unsigned stipulation as exhibits to your ex parte application.
3. File the ex parte application with the court as soon as possible, given the approaching deadline.
4. Serve the ex parte application on the defense counsel, providing them with notice of the ex parte hearing date.
5. Attend the ex parte hearing and explain to the judge the circumstances and the need for an extension.
In your ex parte application, emphasize the good cause for the extension, the defense counsel's agreement to the stipulation, and their failure to execute the stipulation despite the looming deadline. The court will likely consider the email correspondence as evidence of the agreement and may grant the extension based on the circumstances.
It is important to act quickly and file the ex parte application before your deadline expires to avoid any potential complications. By filing the ex parte application, you demonstrate your diligence in seeking the extension and the defense counsel's lack of cooperation, which may help your case.
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