ca appellate procedure 081916pm - san francisco legal

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California Appellate ProcedureFebruary 2, 2019

Presented by: Cyndee Sauceda

Appellate Districts

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• This does not cover limited appeals to superior court

• Always check the local rules

• Always check rules cited

• Always check for any rules for individual cases

Appeals

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• Notice of Appeal

• Designating the Record

• Briefing

• Environmental Leadership Projects

• Oral Argument

• Opinion

• Remittitur

Sequence of Appeals

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NOTICE OF APPEAL

Notice of Appeal

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• Required Contents:

– The notice of appeal is sufficient if it identifies the particular judgment or order being appealed

• Use Judicial Council Form APP‐002

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The Beginning

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• Notice of Appeal

– Starts the Appeal when Timely Filed

“ . . . no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”

‐CRC 8.104(b)

“Normal” Deadline to File

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• Unless a statute or CRC 8.108 provides otherwise, the Notice of Appeal is due the EARLIEST of:– 60 days after a Notice of Entry of Judgment is served by either the clerk or a party;

– 60 days after a file stamped copy of the judgment is served (showing the date of service); or

– 180 days after entry of judgment.

CRC 8.104(a)

Extensions of Time to File

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• Notice of Appeal deadline is extended by valid post trial motions

• Motion for New Trial Denied– Earliest of:

• 30 days after clerk / party serves an order denying the motion or a notice of entry of that order;

• 30 days after denial of the motion by operation of law; or

• 180 days after entry of judgment.

‐CRC 8.108(b)

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Extensions of Time to File Cont’d

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• Motion to Vacate Judgment or Motion for Judgment Notwithstanding the Verdict

– Earliest of:• 30 days after clerk or party serves an order denying the motion or a notice of entry of that order;

• 30 days after denial of the motion by operation of law; or

• 180 days after entry of judgment ‐CRC 8.108(c) & (d)

Extensions Cont’d

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• Motion to Reconsider Appealable Order

– Earliest of:

• 30 days after clerk or party serves an order denying the motion or a notice of entry of that order;

• 90 days after the first motion to reconsider is filed; or

• 180 days after entry of the appealable order

‐CRC 8.108(e)

More Extensions

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Government Entities (under certain circumstances)

• If invoking options under Gov. Code sections 962, 984 or 985, the Notice of Appeal is due:

– 90 days after the clerk or party serves the Notice of Entry of Judgment on the appealing party;

– 90 days after the clerk or party serves a file stamped copy of the judgment (showing date of service);

– 180 days after entry of judgment.

‐CRC 8.108(f)

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Deadline to File

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Deadline for filing a Notice of Appeal is NOT extended if you serve by mail or other method

allowed by Code of Civil Procedure section 1013, et seq.

With the Notice of Appeal

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• Filing fees for Private Clients – Currently $775

• Civil Case Information Statement– Judicial Council Form APP‐004– Due 15 days after the Superior Court clerk mails the notification of the filing of the notice of appeal required under Rule 8.100(e)(1)

– Must attach a copy of the judgment / order being appealed

Cross Appeals

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• Notice of Cross Appeal is due– 20 days after the clerk serves the notification of the first appeal

‐CRC 8.108(g)

• Must submit a proposed briefing sequence within 20 days after filing Notice of Cross Appeal

‐CRC 8.216

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Where To File

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• Superior Court

– Notice of Appeal

– Notice of Cross Appeal

• Appellate Court

– Civil Case Information Statement

– Proposed Briefing Sequence

DESIGNATING THE RECORD

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Significance of the Record on Appeal

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“An inadequate record will bar consideration of omitted issues because the appellate court will not ordinarily consider any facts not included in the record on appeal.”

California Civil Appellate Practice, 3d Edition, Abbot, et al. CEB

What Constitutes the Record?

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Oral Proceedings

Written Proceedings

Oral Proceedings

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• Reporter’s Transcript– Consists of transcripts taken during the proceedings.

• Agreed Statement– Parties agree to a narrative statement that describe the basis of the appeal and the facts necessary to its determination.

– Rarely used.

• Settled Statement – Party submits narrative. Opposing party submits amendments. Ultimate statement is approved by trial judge.

‐ CRC 8.120(b)

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Written Proceedings

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• Clerk’s Transcript – When the clerk assembles this part of the record

• Appendix

• Agreed Statement

• Settled Statement

• Superior Court File– If the reviewing court permits it (you can call the

clerk’s office at the Court of Appeal and ask), the parties may stipulate to use the superior court file instead of the usual clerk’s transcript by filing the stipulation

‐CRC 8.120(a)

Written Proceedings

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• Exhibits admitted into evidence, refused or lodged are automatically deemed part of the record. (CRC 8.122(a)(3))

– Party can still designate them in the clerk’s transcript

Procedures

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• Appellant files “Appellant’s Notice of Designation of Record”

– Due 10 days after filing the notice of appeal (CRC 121(a))– Judicial Council Form APP‐003

• Respondent files its own “counter designation”

– Due 10 days after service of the Appellant’s Notice (CRC 8.130(a)(3))

– Judicial Council Form APP‐010– A Respondent can file a Notice to Proceed by

Appendix under 8.124(a)(1)(B) – Due ten days after appeal is filed

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Procedures

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File Appellant’s Notice of Designation / Respondent’s Notice of Designation in

Superior Court

Designation: Reporter’s Transcript

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• Reporter’s Transcript – Serve a copy of the Notice of Designation on all court reporters whose identity is known.

– Deposit• Must be either amount specified in the reporter’s written estimate; or

• If not already transcribed: – $325 for half day (not exceeding 3 hours) – $650 for full day (exceeding 3 hours);

• If previously transcribed:– $80 for half day (not exceeding 3 hours) – $160 for full day (exceeding 3 hours);

• $50 to the Superior Court to hold the deposit in trust.

‐ CRC 8.130

Designation: Reporter’s Transcript

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• “If the appellant elects to proceed without a reporter’s transcript, the respondent cannot require that a reporter’s transcript be prepared.”

• Court or respondent could request via a motion that the record be augmented.

CRC 8.130

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Designation: Clerk’s Transcript

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• Mandatory Items: – Notice of Appeal;

– Judgment / Order appealed from and any notice of its entry;

– Any Motion for New Trial; Motion to Vacate Judgment; JNOV; Motion for Reconsideration; any ruling and notice of its entry;

– Notices or Stipulation to prepare the Clerk’s or Reporter’s Transcript;

– Register of Actions. CRC 8.122


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• Items which MAY be included (if designated):

– “Any other document filed or lodged in the case in the superior court;

– Any exhibit admitted into evidence, refused or lodged; and

– Any jury instruction that any party submitted in writing and the cover page [] indicating the party requesting it, and any written jury instruction given by the court.”

CRC 8.122(b)(3)(A‐C)

Designation: Clerk’s Transcripts

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• Items which may NOT be included:

– “The original of a deposition except those portions of a deposition presented or offered into evidence under Rule 2.1040

– The record of an administrative proceeding that was admitted into evidence, refused, or lodged in the trial court.”

• Administrative proceeding sent separate from the Clerk’s Transcript

CRC 8.122(b)(4)(A‐B)

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• Clerk sends to all parties a notice of the estimated cost to prepare an original and copy of the Clerk’s transcript

– Upon filing Notice of Designation, should deposit $100 with the Superior Court

– Due 30 days after Respondent files its designation, or the expiration of time to do so

CRC 8.122

Time Frames

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• Reporter’s Transcript– SHOULD complete the Reporter’s Transcript 30 days after receiving Notice of Designation from clerk

• Clerk’s Transcript – SHOULD complete the Clerk’s Transcript 30 days after Appellant deposits the estimated costs

• Both upon completion, the Reporter / Clerk forwards the transcript(s) to the appellate court, and to all parties who have paid for a copy

Designation: Appendix

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• Same contents as the Clerk’s Transcript – Difference – the attorneys / parties assemble it

• Must specify on the Notice of Designation that, in lieu of the clerk’s transcript, will submit an Appendix– Any party may object to the Appendix designation within 10 days of service of the Notice of Designation

CRC 8.124

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• Mandatory Documents

– All documents required to be included in the Clerk’s Transcript

– Any other documents filed with the court that are essential “for proper consideration of the issues”

• This includes documents that Appellant should reasonably assume will be relied upon by Respondent

– Notice of Designation (to prepare the Appendix)

– For a JOINT APPENDIX , include stipulation as to its contents

CRC 8.124 & 8.122


• Documents NOT to be included:

– Documents NOT necessary “for proper consideration of the issues”

– Transcripts of oral proceedings that could be included in the Reporter’s Transcript

– Record of Administrative Proceedings

– Documents incorporated by reference • May reference record on appeal in another case pending in the same appellate court

• May reference record on a prior appeal in the same case

CRC 8.124

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• Joint Appendix

– Parties stipulate to the contents of the Appendix

– Up to parties to coordinate

– Deadline for stipulation: Date on which Appellant’s Appendix is due (CRC 8.124(e)(2))

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Respondent and Appellant may file and serve an Appendix with the Respondent’s Brief and Appellant’s Reply Brief

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Format of Appendix

• Generally – must comply with the requirements of a Clerk’s Transcript (CRC 8.144)

• Cover – same caption as a brief

• Colors of covers for courts still requiring originals (Self‐represented parties not e‐filing)

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Title (CRC 8.124(d)(2)) Color (8.40 (b)(1))

Appellant’s Appendix Green

Joint Appendix White

Respondent’s Appendix Yellow

Appellant’s Reply Appendix Tan

Format of Paper Appendix • Single sided • Bound on the left side (separate from brief)

• Paginated consecutively• Volume not to exceed 300 pages (including indices)

• Index – both chronological and alphabetical, providing page number of the first page of each document

CRC 8.124 & 8.144

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Format of Electronic Appendix

• Paginated consecutively starting with the cover page using only the Arabic numbering system (1, 2, 3, etc.)

• Scanning the document: – 300 dots per inch (dpi)– Black and white (not gray scale or color, unless scanning an image)

– OCR (optical character recognition)

• Create bookmarks for all documents contained in the Appendix

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Filing and Service of Appendix

• Submit with Brief:

– File one copy with court

– Serve one copy on each party

– No need to serve Superior Court

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BRIEFS

Required Contents • Certificate of Interested Parties

• Table of Contents & Table of Authorities

• Separate headings / subheadings summarizing the point

• Citations to record to support references

• Appellant’s Brief: – State the nature of the action, the relief sought in the trial

court, and the judgment / order appealed – State the judgment appealed from is final, OR why the

order is appealable– Provide a summary of the significant facts limited to

matters in the recordCRC 8.204

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Required Contents

• With a party’s first appearance, it must include:– Certificate of Interested Entities or Persons

• Must list any other person or entity that has an ownership interest in 10% or more

– Does not include competitive interest • If no other party with an interest, the Certificate should say so

CRC 8.208

• When submitted in principal brief, include after cover and before table of contents

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Form and Format• 13 point font (including footnotes)

• MAY be double sided

• Line spacing – 1.5

• Margins:

– Left / Right – 1.5”

– Top / Bottom – 1”

• Pages must be consecutively numbered, starting with the cover page using only Arabic numbering system (1, 2, 3, etc.)

• Paper copies should be bound on left side– If stapled, cover staple with tape

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Form and Format

Cover of paper copies • Color (CRC 8.40(b))

• Preferably card stock (CRC 8.204)

• http://www.courts.ca.gov/courts.htm

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Form and Format

• Caption must include:– Title of brief – Title, trial court number, Court of Appeal case number – Names of trial court judge(s)– Name of the party(ies) that each attorney represents

• Per CRC 8.40 – Attorney information must include:– Name– Mailing address– Telephone number – Facsimile number (if available)– Email address (if available)– State bar number – If more than one attorney from a law firm, one attorney must be

designated (by an asterisk) to receive notices and communications from the court.

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Form and FormatSample Caption Page

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Form and Format • Length (opening, respondent’s and reply briefs)

– Computer: 14,000 words (approximately 46 pages)

• Includes Footnotes

• Excludes:–Caption Page –Table of Contents / Table of Authorities –Certificate of Interested Parties –Certificate of Word Count –Signature Block–Any Attachment

• Provide Certificate of Word Count

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Form and Format

Sample Word Certification

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Deadline to File

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Event Deadline to File (CRC 8.212)

Appellant’s Opening Brief 40 days after the record is filed in the reviewing court

OR

40 days after the Reporter’s Transcript, after Rule 8.124 election is filed in the reviewing court

OR

70 days after the filing of a Rule 8.124 election (if proceeding without a Reporter’s Transcript)

Respondent’s Brief 30 days after appellant files its opening brief

Reply Brief 20 days after the respondent filesits brief

Cross Appeals

• Often, the Respondent’s Brief is combined with its Cross Appellant’s Brief– Length limits are double – the separate appeals are different sections of the combined brief

• Sequence

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Original Brief Combined Brief

1st Filing: Appellant’s Brief

2nd Filing: Respondent’s Brief Cross Appellant’s Opening Brief

3rd Filing: 1st Appellant’s Reply Brief Cross Respondent’s Responding Brief

4th Filing: Cross Appellant’s Reply Brief

Deadline to File

• Parties may stipulate to a 60 day extension (file prior to when brief is due) – Stipulation is effective on filing. Appellate court may not shorten time

• Party may apply to presiding judge for extension – Must show that unable to obtain stipulation for extension

– Parties have stipulated to extension and applicant seeks a further extension

CRC 8.212

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Deadline to File

• 15 day rule . . . If a party fails to timely file [its] brief, the reviewing court clerk must promptly notify the party by mail that the brief must be filed within 15 days after the notice is mailed . . . “

• Failure to file after expiration of the 15 days may result in sanctions or dismissal

CRC 8.220

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Deadline to File

• Check the docket on the Court of Appeal’s website

– Often, the court will post a briefing schedule

– Some Courts of Appeal will let you sign up for automatic notification when there is activity on your case

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Filing and Service • In the Court of Appeal

• All Districts and the Supreme Court are mandatory e‐filing courts using TruFiling

• One copy must be served on each party and the Superior Court –Parties may be e‐served under Rule 8.71

• A party indicates that the party agrees to accept electronic service under Rule 8.71:

(A) Serving a notice on all parties that the party accepts electronic service and filing the notice with the court. The notice must include the electronic service address at which the party agrees to accept service; or

(B) Electronically filing any document with the court. The act of electronic filing is evidence that the party agrees to accept service at the electronic service address that the party has furnished to the court under Rule 8.76(a)(4).

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Electronic Filing

• Format: PDF– Suggested: Publish to PDF– All headings, Certificate of Interested Entities, TOC, TOA and Word Count Certificate must be bookmarked

• Signature requirements:– CRC 8.204(b)(9): “The brief need not be signed.”

– CRC 8.77(b): “If a document does not require a signature under penalty of perjury, the document is deemed signed by the party if the document is filed electronically.”

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ENVIRONMENTAL LEADERSHIP PROJECTS

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ELDP

“Environmental leadership development project” or “leadership project” means a project certified by the Governor under Public Resources Code Sections 21182‐84.

CRC 8.700(a)(1)

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ELDP – Notice of Appeal

(A)Five court days after Superior Court clerk served on party filing the notice of appeal, “Notice of Entry” or file‐endorsed copy of judgment served; or

(B)Five court days after party filing the notice of appeal serves or is served with “Notice of Entry” or file‐endorsed judgment with POS

CRC 8.702(b)(1)

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ELDP – Designation of Record

• Appellant must serve and file its designation of the record with its notice of appeal

• Appellant MUST proceed in the form of a joint appendix or separate appellant’s and respondent’s appendixes under Rule 8.124

• If appellant elects to proceed with record of oral proceedings, notice must designate reporter’s transcript – Within 10 days, reporter must prepare and certify original transcript

CRC 8.702(d)

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ELDP – BRIEFING

• Opening brief is due 25 days after filing Notice of Appeal

• Respondent’s brief is due 25 days after Opening Brief

• Reply brief is due 15 days after Respondent’s brief

CRC 8.702(f)(2)

• There is no “15‐day” Rule for briefs – Reviewing clerk must serve notice indicating if brief not filed within 2 court days

CRC 8.702(f)(5)

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ELDP – Briefing Extensions

• If the parties stipulate to Extend the time to file a brief – agree time for resolving the action may be extended beyond 270 days

CRC 8.702(f)(4)

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ELDP – E‐Briefs

• Within 5 Days after filing its brief:– Each party must submit an electronic version of the brief that contains hyperlinks to material cited in the brief, including electronically searchable copies of the record on appeal, cited decisions, and the parties' other briefs. Such briefs must comply with any local requirements of the reviewing court relating to e‐briefs

• Such briefs must comply with any local requirements of the reviewing court relating to e‐briefs

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ORAL ARGUMENT

Oral Argument

Check your court’s local rules

• Clerk sends notice of time and place at least 20 days prior to argument date unless waived

• Waived, unless oral argument is requested

CRC 8.256

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Oral Argument

• Each side gets a specified amount of time for argument– Presiding judge may expand if multiple parties

• Some Courts of Appeal do not allow electronic equipment (i.e. laptops)

• Case opinion is due 90 days after oral argument / case is submitted

(Code of Judicial Ethics / Cal. Constitution)

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ELDP ‐ Oral Argument

• Unless otherwise ordered by the reviewing court, oral argument will be held within 45 days after the last reply brief is filed

(CRC 8.702(g))

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REMITTITUR

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Remittitur

• Remittitur

– Definition (from Law.com):

• An appeal's transmittal of a case back to the trial court so that the case can be retried, or an order entered consistent with the appeals court's decision (such as dismissing the plaintiff's case or awarding costs to the winning party on appeal).

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Remittitur

• Clerk to issue the Remittitur upon:

– Supreme Court denies review

– Period for Supreme Court granting review expires

• If Supreme Court grants review

– Upon receiving the Supreme Court remittitur

CRC 8.272

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Other

• Publication – By decision of the court – Request by any person

• Request made by letter to the court • Submit by 20 days after opinion is filed (CRC 8.1120)• Serve letter on all parties

• Depublication– Request made by any person

• Request made by letter to the Supreme Court • Submit within 30 days after the decision is final in the Court of Appeal (CRC 8.1125)

• Within 10 days of the Court’s receipt, any person may file a response

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Other

• Petition for Review to the Supreme Court

– Petition 10 days after the Court of Appeal decision becomes final

– Answer 20 days after Petition

– Reply 10 days after Answer

• Memo of Costs

– Due 40 days after the clerk sends notice of issuance of remittitur

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Thank You !