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Order Regarding Revisions to Local Rule 2 - Adopts Mediation Program in Civil Appeals - June 14, 2011

Order Regarding Penal Code section 4019 Amendment Supplemental Briefing - February 11, 2010  

In pending appeals in which an appellant arguably is entitled to additional presentence custody credits under the January 25, 2010 amendments to Penal Code section 4019, the court will deem the following issues raised without additional briefing:

    (1) Under amended Penal Code section 4019, appellant is entitled to recalculation of presentence work and custody credits;

    (2) To hold otherwise would violate equal protection principles.

This order applies to all appeals. If the court deems supplemental briefing necessary from either the appellant or the respondent, it will request a letter brief from counsel.

JAMES A. ARDAIZ, P.J.

Local Rules of the Court of Appeal Fifth Appellate District

(As amended effective August 25, 2003; adopted, effective July 1, 1981; and previously amended February 25, 1983, February 8, 1985, October 2, 1992, November 15, 1993, June 25, 1999, and January 1, 2007.)


Rule 1. Augmentation of Record and Correction of Omissions from Record

a) [Material inadvertently omitted] Counsel should not file a motion to augment the record when items have been omitted from the normal (criminal) record on appeal. In those cases counsel should immediately notify the clerk of the superior court, who shall forthwith comply with rule 8.155 (b) of the California Rules of Court.

(b) [When to file motion to augment] Appellant should file requests for augmentation in one motion within 40 days of the filing of the record. Respondent should file requests for augmentation in one motion made within 30 days of the filing of appellant's opening brief. Thereafter, motions to augment will not be granted except upon a showing of good cause for the delay.

(c) [Clerk's transcript] A motion to augment or correct the clerk's transcript shall be accompanied either by certified copies of the documents requested, or, if the documents are not provided, the motion must identify them with specificity and contain an explanation for their omission.

(d) [Reporter's transcript] A motion to augment the reporter's transcript shall identify the portion of the record with specificity, including the reporter's name and the date of the hearing. The motion shall establish with some certainty how the requested materials may be useful on appeal.

(e) [Extension of time] The time to perform any act required or permitted by the California Rules of Court will not be automatically extended in civil cases by the filing of or ruling on a motion to augment. If additional time is needed, counsel may request an extension of time in the motion to augment.

(f) [Good faith required] A motion to augment shall be made in good faith and shall not be made for the purpose of delay.

(Formerly Rule 2, adopted, eff. Nov. 15, 1993. Renumbered Rule 1, eff. Aug. 25, 2003.)

Rule 2. Mediation Program for Civil Appeals

Rule 2. Mediation Program for Civil Appeals

The Court has established a Judicial Mediation Program to assist parties to resolve appellate disputes in civil cases the Court finds suitable.

(a) Rule application: This rule applies to all civil appeals except those under Welfare and Institutions Code sections 300, 601, and 602 and Family Code section 7802, appeals in conservatorship and guardianship matters, and appeals from original proceedings ancillary to a criminal prosecution.

(b) Questionnaire: When a notice of appeal in a civil case is filed in any case to which this rule applies, the Clerk will promptly mail to appellant and respondent the non-confidential Civil Appeal Case Screening Questionnaire. [Downloadable form available on the Court's website http://www.courts.ca.gov/5dca.htm.] Within 10 calendar days after the Clerk mails the Civil Appeal Case Screening Questionnaire form, each party must complete, sign, serve and return the Questionnaire to the Court of Appeal.

The Questionnaire will assist the Court in selecting a case for mediation with a sitting justice of this Court. The Court will select a case promptly after the Questionnaire is submitted and before the parties have incurred the expense of record preparation and appellate briefing. The Court recognizes the parties are asked to prepare the Questionnaire very early in the appellate process and may not be able to identify all appellate contentions. The Court will not deem an omission to be a waiver or forfeiture of any claim on appeal.

Failure to timely return the Questionnaire on the appellant's part may result in dismissal of the appeal, without prejudice to reinstatement on a showing of good cause, or in imposition of monetary sanctions pursuant to subdivision (e).

Failure to return the Questionnaire on the respondent's part may result in the appeal being considered for mediation suitability without input from the respondent, or in imposition of monetary sanctions pursuant to subdivision (e).

(c) Mediation/Settlement Process:

    (1) Effective upon the filing of any civil notice of appeal to which the rule applies, the provisions of rules 8.121, 8.124 and 8.216 of the California Rules of Court requiring designation of the record, payment of estimated costs for preparation of the record and submission of a proposed briefing schedule are suspended, pending the Court's decision to select or not select the civil appeal for mediation.

    These rules do not prohibit the superior court from collecting the deposit required by Government Code section 68926.1 and by California Rules of Court, rule 8.100(b)(2).

    (2) Within 14 calendar days after the Court receives the Civil Appeal Case Screening Questionnaires, it will notify the parties whether the Court has or has not selected the civil appeal for mediation. If a civil appeal is selected for mediation, the Court will notify the parties with the name and telephone number of the Justice mediator and a Court contact person, and three dates when the Justice is available for the mediation session. At the same time, the Court will furnish the Justice mediator copies of the Civil Appeal Case Screening Questionnaires. Within 14 calendar days after receipt of the dates the Justice mediator is available, the parties must advise the Court contact person of their scheduling preferences. The Court will promptly select the date for the mediation session and will notify the parties by telephone and in writing.

    If a civil appeal is selected for mediation, suspension of rules 8.121, 8.124 and 8.216 of the California Rules of Court will remain in effect until mediation is complete.

    If a civil appeal is not selected for mediation, the Court will notify the parties and the superior court, in writing, that the suspension of rules 8.121, 8.124, and 8.216 of the California Rules of Court is terminated. The parties must comply with the requirements of rules 8.121, 8.124 and 8.216 of the California Rules of Court as if the notice of appeal was filed on the date specified in that notice.

    If a civil appeal is not selected for mediation, the parties may thereafter submit a stipulation to mediation within the program. The Court will promptly decide whether or not to accept the case into the mediation program and will notify the parties of its decision.

    (3) The Justice mediator may, for good cause, continue a mediation session to a date certain. The Justice may also continue the mediation from time to time to allow further opportunity for negotiation and agreement.

    (4) The parties shall submit a CONFIDENTIAL Mediation Statement to the Court at least 7 calendar days before the scheduled mediation. The statement shall provide:

      (A) The names of parties and their attorneys.

      (B) A statement regarding the existence of any applicable insurance, and, if so, the identity of the carrier, the amount of the applicable insurance policy limits and the nature of any insurance coverage disputes/issues.

      (C) A statement indicating whether or not a board, council or other committee must approve any settlement, and, if so, the identity of that body.

      (D) The identification of any person not named as a party whose consent is necessary to achieve settlement.

      (E) The dates and results of prior arbitration, mediation and most recent settlement discussions.

      (F) The dates and amounts of any Code of Civil Procedure section 998 offers.

      (G) A statement identifying and discussing in detail all facts and law pertinent to the issues of liability and damages involved in the case as to that party.

      (H) An itemization of all economic and noneconomic damages claimed by the plaintiff.

      (I) A description of any liens and their amounts.

      (J) A statement whether there is any claim for recovery of attorney's fees, and, if so, the amount incurred to date.

      (K) A statement of any additional information that might assist the Justice mediator.

    (5) All parties and their counsel of record must attend all mediation sessions in person with full settlement authority. If a party is not an individual, then a party representative with full authority to settle all appeals and cross-appeals must attend all mediation sessions in person, in addition to counsel. If a party has potential insurance coverage applicable to any of the issues in dispute, a representative of each insurance carrier whose policy may apply also must attend all mediation sessions in person, with full settlement authority. Any exception to this requirement must be approved in writing by the Justice mediator. The Justice mediator may invite participation by any additional person or entity if the mediator concludes that such participation would facilitate mediation.

    (6) If completion of mediation does not result in disposition of the appeal, the Court will immediately notify the parties and the superior court that suspension of rules 8.121, 8.124 and 8.216 of the California Rules of Court is terminated. The parties must comply with the requirements of rules 8.121, 8.124 and 8.216 of the California Rules of Court as if the notice of appeal was filed on the date specified in that notice.

(d) Confidentiality: Except as otherwise required by law, information disclosed to the Justice mediator, the parties, counsel, or any other participant in the mediation, or in the Mediation Statement, is confidential and must not be disclosed to anyone not participating in the program. The parties are required to sign a confidentiality agreement in a form designated by the Court.

(e) Sanctions: Monetary sanctions may be imposed following a noticed motion by a party seeking sanctions for failure to comply with the rules or on the Court's own motion.

(f) Disqualification of mediator justice: Any justice who participates in a mediation shall not thereafter participate in the consideration or disposition of the appeal on its merits.

Amended effective Feb. 10, 2012, adopted effective Sept. 1, 2011; former rule 2, Settlement Conferences in Civil Appeals, repealed Sept. 1, 2011

Rule 3. Writ Petitions, Supporting Records and Stay Requests

Amendment to Local Rule 3 has been published pursuant to California Rules of Court, rule 10.1030 and takes effect November 1, 2012.

The amended portions of the rule are in bold below.

(a) [Information Sheet] All petitions for extraordinary writs, other than habeas corpus, shall be accompanied by a properly completed face sheet, the Appellate Court Writ Petition Information Sheet. This form is available from the clerk of the court and on the Court’s website.

(b) [Required Exhibits] A petition for an extraordinary writ that seeks review of a trial court ruling shall be accompanied by the following:

(1) a copy of the order or judgment from which relief is sought;
(2) copies of all documents submitted to the trial court supporting and opposing petitioner's position; and
(3) a transcript of the proceedings leading to the order or judgment below, or if a transcript is unnecessary or unavailable, a declaration by counsel (i) explaining why a transcript is unnecessary or unavailable and (ii) fairly summarizing the proceedings, including arguments by counsel and the basis of the trial court's decision, if stated.

(c) [Copies of Filed Documents] In lieu of the requirements contained in California Rules of Court, rule 8.44(b)(3) and (5), a party who files a petition, answer, opposition, reply, or other response to a petition, including any supporting documents, shall file an original and:

(1) one paper copy that is unbound, printed on white paper and does not contain tabs or a red cover; or
(2) an electronic copy in pdf. format, submitted through the e-submissions page on the Court’s website.

This copy requirement does not apply to a self-represented person who files a petition for writ of habeas corpus.

(d) [Stay Request] A petitioner who requests an immediate stay shall explain in the petition the reasons for the urgency and set forth all relevant time constraints. If a petitioner does not submit the required record and explanations or does not present facts sufficient to excuse the failure to submit them, the court may summarily deny the stay request.

(Effective November 1, 2012; Formerly Rule 5, adopted eff. Nov. 15, 1993, Renumbered Rule 3, eff. Aug 25, 2003.)

Rule 4. The Teleconference Oral Argument Option

The court has a teleconference system that enables attorneys to stay in their office until such time as contacted by the court for oral argument before the court.

Teleconference Procedures

    1. Counsel who have requested oral argument will have returned to the court a questionnaire designating the attorney arguing the case and the time requested. If counsel has not specifically designated on the questionnaire a request for personal appearance, the attorney shall be deemed to have consented to teleconference oral argument.

    2. The questionnaire requests a current California telephone number for counsel, which the court utilizes unless otherwise notified by counsel. The courtroom clerk will telephone each counsel's office in the sequence the cases are called on the calendar. Counsel are expected to be at the telephone number previously given to the court during the time oral argument has been scheduled and until such time as it has been completed.

    Failure to be available to receive the telephone call will be treated in the same manner as a failure to personally appear for scheduled oral argument. Counsel is responsible for notifying the court if the designated telephone number is changed.

    3. At the conclusion of the teleconference oral argument, the matter is submitted or the court will issue further directives as necessary.

    4. Retained counsel participating in a teleconference call shall receive a nominal billing from the court following oral argument to cover the cost of the teleconference call and the administrative time involved.

    5. Any deviation by appointed or retained counsel from these procedures shall not be permitted except by express prior approval of the court.

    (Formerly Rule 6, adopted, eff. Nov. 15, 1993. Renumbered Rule 4, eff. Aug. 25, 2003.)

Rule 5. Renumbered Rule 3, Eff. Aug. 25, 2003

See Rule 3 .

Rule 5. Stipulation for Use of Original Superior Court File

The California Rules of Court authorize the use of the original superior court file in lieu of the clerk's transcript on appeal in those cases where the parties so stipulate. The procedure therein is approved for use by the superior courts within this district in all civil cases in which the trial court retains no continuing jurisdiction. The stipulation shall be in substantially the form of the following: Stipulation for Use of Original Superior Court File in Lieu of Clerk's Transcript.

(Adopted, eff. October 6, 2006.)

Rule 6. Renumbered Rule 4, Eff. Aug. 25, 2003

See Rule 4.

Local Court Form

Appellate Court Writ Petition Information Sheet

By order dated November 23, 1982, all petitions for extraordinary writs, other than habeas corpus, shall be accompanied by a properly completed face sheet, the Appellate Court Writ Petition Information Sheet. This form is available from the clerk of the court, and also is available on the court website.

(As amended, eff. Aug. 25, 2003.)

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