Better safe than sorry - an overused expression indeed. But when it comes to construing statutory time limits for filing a writ petition, it is still the best advice around. Parties take a large and unwarranted risk when they assume the existence of uncodified grounds for extending those time limits. If an appellate court ultimately determines that no such grounds for an extension exists, it probably will conclude the party's petition, filed outside the explicit statutory time limits, is unreviewable.

The frequency with which counsel have misinterpreted one particular set of statutory time limits - those applicable to writ petitions seeking review of a denial of summary judgment - recently prompted the 2nd District Court of Appeal to set the record straight. Bensimon v. Superior Court, 113 Cal.App.4th 1257 (Dec. 4, 2003), clarifies that a motion for reconsideration does not extend the time provided by statute for filing such a petition, even though counsel have too often made that assumption. See also Schmidt v. Superior Court, 207 Cal. App. 3d 56 (1989).

The statutory time limits at issue in Bensimon are found in Code of Civil Procedure Section 437c, which provides that a party must file the petition "within 20 days after service upon him or her of a written notice of entry of the order" denying summary judgment. Section 437c(m)(1). The statute identifies numerous circumstances that can extend the filing deadline. If service is by mail, the time is extended by five, 10 or 20 days depending on whether the service address is within California, in the United States but outside California, or outside the United States.

If service is by facsimile transmission or an overnight delivery method, the time is increased by only two court days. And before expiration of the initial period, the Superior Court can, for good cause, extend the time as much as 10 additional days. Section 437c makes no mention of motions for reconsideration.

Why, then, have parties so often assumed that motions for reconsideration extend the time for filing a writ petition after denial of summary judgment? The answer likely lies in the effect motions for reconsideration historically have had on the time for filing an appeal. Before 2001, California Rule of Court 3 extended the time for appeal when a party filed a motion for new trial or motion to vacate judgment.

Rule 3 did not specifically mention motions for reconsideration. Many courts nevertheless interpreted Rule 3 as implicitly extending the time for appeal when a party made such a motion. See Blue Mountain Development Co. v. Carville, 132 Cal.App.3d 1005 (1982); Gill v. Hughes, 227 Cal.App.3d 1299 (1991).

However, after one appellate court concluded a reconsideration motion did not extend the time for appeal (see Conservatorship of Coombs, 67 Cal.App.4th 1395 (1998)), Rule 3 was revised so that it now explicitly provides that motions for reconsideration extend the time for appeal. The advisory committee comments explain that this revision reflects Rule 3's goal of encouraging parties to seek all possible recourse from the trial court because, if successful, the need for appellate review will disappear.

Even though motions for reconsideration historically have extended the time for filing an appeal - even when Rule 3 did not say so expressly - the Bensimon court concluded that such motions do not extend the time for filing a petition challenging a trial court's denial of a motion for summary judgment. The court explained that Section 437c's 20-day time limit is intended to prevent unnecessary delay resulting from a challenge to the trial court's summary judgment ruling. Bensimon, 113 Cal. App. 4th at 1259.

The Bensimon decision also concludes Section 437c's time limits are jurisdictional and cannot be extended by a motion for reconsideration.

Applying these controlling principles, the court held that Bensimon's petition was untimely. On Sept. 23, 2003, the trial court mailed notice of its denial of summary judgment. Bensimon filed a timely motion for reconsideration. On Oct. 29, the trial court denied that motion and granted a 10-day extension for filing a writ petition seeking review of the summary judgment denial. Bensimon filed his petition Nov. 10.

The appellate court calculated the deadline for filing the writ petition by adding 20 days to Sept. 23 and then adding five more days for service by mail. The resulting date, Oct. 18, fell on a weekend, and the court concluded the last date for filing the petition was Oct. 20, the next court day. The Bensimon court found the trial court's attempt to grant a 10-day extension was ineffective because given after the initial statutory period for filing a writ petition.

Accordingly, it concluded Bensimon's Nov. 10 petition was untimely and unreviewable.

The different effect that motions for reconsideration have on the time for filing an appeal and for filing a writ petition after denial of summary judgment reflects in part the different language in Rule 3 and Section 437c. While Rule 3, even before 2001, identified a number of motions that could extend the time for filing an appeal, Section 437c contains no similar language, even though it explicitly identifies numerous other grounds for extending the time for filing a writ petition.

In addition, the different policies that motivate Rule 3 and Section 437c provide further explanation for the different impact that motions for reconsideration have under those two provisions. Rule 3 grants extensions of time for filing an appeal in order to allow resolution of an issue in the trial court and potentially obviate the need for an appeal.

In contrast, concerns for expediency trump any countervailing desire to avoid appellate involvement when it comes to a Section 437c writ petition. Section 437c(m)(1)'s purpose is to limit the parties' right to file a common-law writ, whose timing would only be subject to equitable considerations such as laches.

The statute instead imposes strict time limits, thereby encouraging expeditious resolution of all issues surrounding the denial of summary judgment.

Allowing a motion for reconsideration to delay appellate review in that context would run counter to this goal.

These differences not only explain Bensimon's conclusion but also suggest that courts likely will reach the same result if parties ignore the time limits that numerous other statutes impose on writ petitions seeking review of a host of other trial court rulings. See Code of Civil Procedure Section 877.6(e) (determination of settlement's good faith or lack of good faith); Section 418.10(c) (denial of motion to quash service of summons); Section 405.39 (ruling on motion to expunge lis pendens); Section 404.6 (order granting or denying case coordination); Section 400 (denial or grant of change of venue); Section 170.3(d) (trial judge disqualification ruling); and Government Code Section 6259(c) (decision regarding disclosure of records by a public official).

As with Section 437c(m)(1), none of these statutes grants an extension of time for motions for reconsideration. Moreover, the motivation of each of these statutes is the same as that of 437c - a desire to avoid delay. See Filarsky v. Superior Court, 28 Cal.4th. 419 (2002) (the purpose of Government Code Section 6259(c) is to prohibit public agencies from delaying the disclosure of public records); Code Civil Procedure Section 877.6(e)(1) and (e)(2) (within 30 days after the filing of a petition seeking review of a good-faith-settlement determination, appellate court must indicate whether it will hear the writ and, if so, grant it calendar preference).

Thus, counsel can expect appellate courts to interpret them in a fashion similar to Bensimon's interpretation of 437c(m)(1), and refuse to imply an extension of time for motions for reconsideration.

Counsel can also expect equally strict construction of any provision in these statutes authorizing the trial court to extend the time for filing a writ petition, but, like 437c, limiting the exercise of that right to the initial filing period. See Code of Civil Procedure Section 405.39 (allowing trial court to grant a 10-day extension "within the initial 20-day period"); Section 404.6 (trial court may "prior to the expiration of the initial 20-day period," grant up to a 10-day extension); and Section 400 (same).

As in Bensimon, courts likely will follow the letter of those statutes and conclude a trial court's extension of time granted after expiration of the initial period for filing the writ petition is ineffective.

The wise course, therefore, when contemplating a writ petition under Section 437c or any of these other statutes is strict compliance with the pertinent time limits. This safe course will not leave you sorry.