Practices & Procedures

NOTICE:  The Fifth District Court of Appeal uses TrueFiling, an electronic filing system (EFS) operated by ImageSoft.  A filing in electronic form is accepted in lieu of any paper copies otherwise required under California Rules of Court, rule 8.44 and constitutes the official record of the Court.

Use of the EFS is mandatory for all attorneys (unless the Court of Appeal grants an attorney exemption) and is voluntary for self-represented litigants.  (See Fifth Dist. Ct. of Appeal, Local Rules of Ct., rule 8.)  The procedures described below detail both the mandatory electronic filing requirements and the requirements for a paper filing.

Unless otherwise noted, all rule references hereafter are to the California Rules of Court.

For an overview, read the The Appellate Process.

NOTICE OF APPEAL & RECORD PREPARATION


Civil Appeal:  A Notice of Appeal or Cross-appeal is filed with the clerk of the superior court from which the appeal is taken.  California Judicial Council forms APP-001 and APP-002 may be used.  A $775 filing fee or fee waiver is required.

Criminal & Juvenile Appeals:  A Notice of Appeal is filed with the clerk of the superior court from which the appeal is taken.  In criminal appeals, California Judicial Council form CR-120 may be used.  In juvenile dependency appeals, California Judicial Council form JV-800 may be used.  No filing fee is required.  (Rule 8.304 or 8.400.)

Juvenile Dependency Extraordinary Writ Procedure:  A Notice of Intent is filed with the clerk of the superior court that issued an order setting a permanency planning hearing or made an order regarding placement of a dependent child freed for adoption.  (Rules 8.452 & 8.456.)  California Judicial Council form JV-820 (Notice of Intent) should be used.

  • Please see rules 8.104 (Civil), 8.308 (Criminal) or 8.400 (Juvenile) for information on when to file the Notice of Appeal.


Cases within the appellate jurisdiction of the superior court (other than appeals in small claims cases) may be transferred to the Court of See rules 8.1000 to 8.1008 on transfer or certification.

For civil appeals:  Within 10 days after filing the Notice of Appeal, the appellant (appealing party) must serve and file a notice in superior court designating the record on appeal.  (Rule 8.121.)  The superior court must promptly send a copy of the notice to the Court of Appeal.  (Rule 8.121(c).)

Once a civil Notice of Appeal is filed in a case subject to the Court of Appeal’s Judicial Mediation Program, rules 8.121, 8.124 and 8.216—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 of Appeal’s decision to select or not select the civil appeal for mediation.  (See Fifth Dist. Ct. of Appeal, Local Rules of Ct., rule 2.)

In civil appeals not selected for mediation or in civil appeals where mediation is unsuccessful:

  • Appellants choosing a clerk’s transcript should proceed under rule 8.122.  Although exhibits are deemed part of the clerk’s transcript, they are not automatically included or copied in the clerk’s transcript.  (Rule 8.122(a)(3).)
  • Appellants wishing to prepare their own appendix should elect to proceed under rule 8.124.  Judicial Council forms APP-001 and APP-002 may be used.


Rule 8.130 governs the request for a reporter’s transcript and the fees associated with the ordering of a reporter’s transcript.

For criminal, juvenile and conservatorship appeals:  The clerk’s and reporter’s transcripts are automatically prepared according to rules 8.320-8.336 (Criminal), 8.407 (Juvenile), and 8.480 (Conservatorship).

If you have not received your record on appeal within 90 days in criminal cases or 120 days in civil cases, please contact the superior court’s Appeals Unit.

Although exhibits are deemed part of the clerk’s transcript, they are not automatically included or copied in the clerk’s transcript.  (Rule 8.122(a)(3).)  A party wanting a copy of an exhibit included in the transcript must specify that exhibit by number or letter in its notice of designation of the record.  If the exhibits have been released to counsel, counsel should transmit those exhibits to the superior court clerk pursuant to rule 8.122(a)(3) or to the Court of Appeal pursuant to rule 8.224(b)(2).

If the record is missing documents that were previously designated or are required to be included under the Rules of Court, you will need to file a letter pursuant to rules 8.155(b), 8.340(b), and 8.410 in the superior court and serve a copy of the letter on the Court of Appeal.  Attorneys and others using the Court of Appeal’s EFS shall send the service copy to the Court of Appeal through TrueFiling.

If you forgot to designate certain documents that were before the superior court and would like to add them to the appellate record, you will need to file a motion to augment pursuant to rule 8.155 with the Court of Appeal.  Please see the Motions/Requests/Settlements/Dismissals section on how to file and serve the motion.

If you would like to add documents to the normal or designated record, you may file either a request for judicial notice for documents that were not before the superior court, rule 8.252(a), or a motion to augment documents that were before the superior court but were not designated, rule 8.155.  Please see the Motions/Requests/Dismissals section on how to file and serve the request or motion.  Please also see Formatting Guidelines for Exhibits.

If you are an appellant in a civil appeal, you must serve and file a Civil Case Information Statement (CCIS) within 15 days after the superior court clerk mails the notification of filing of your appeal.  (Rule 8.100(g).)  Click here for the required form:  APP-004.  Your answers help the court to know whether the notice of appeal is on time and whether the judgment or order is appealable, among other things.  Include a copy of the judgment or order from which you are bringing the appeal.  (Rule 8.100(g).)  Also attach a proof of service on all parties to the appeal.

The Court of Appeal will send you a Notice of Default if we do not receive your completed CCIS.  You must cure the default within 15 days (generally by correctly filing the CCIS).  Otherwise, you may be sanctioned and/or your appeal may be dismissed.

If you are a respondent in a civil appeal and have not filed a separate Notice of Appeal, you do not need to file a CCIS.

Each party to a civil appeal or writ proceeding must complete a Certificate of Interested Entities or Persons form to let the Court of Appeal know of potential conflicts of interest.  Click here for the required form:  APP-008. You must include this form when you file your principal brief (including any petition for writ of mandate or review) after the cover and before the tables.  If you file a motion (for example, to augment the record or to dismiss) prior to filing your principal brief, you must file the form at that time.  See rules 8.208, 8.488, 8.495(c), 8.496(c) and 8.498(d).  You are responsible for updating this form if you learn of changed or additional information that must be disclosed.  (Rule 8.208(f).)

The Certificate of Interested Entities or Persons form is not required in appeals from judgments or appealable orders in family law, juvenile, guardianship, and conservatorship cases.  See rule 8.208(b).

  • You must file an appeal from a judgment in a limited civil case with the appellate division of the superior court.  (Rule 8.800 et seq.)  You cannot appeal the appellate division’s decision on appeal to the Court of Appeal; instead, the appellate division’s judgment on appeal is conclusive.  (See Code Civ. Proc., §§ 904.1, subd. (a)(1) & 904.2.)  (Limited civil cases are cases that used to be filed in municipal court before that court was unified with the superior court.)  The rules for appeals to the appellate division are contained in rules 8.880 to 8.935.
  • You cannot appeal the appellate division’s judgment granting or denying a petition for writ of mandate or prohibition if the judgment relates to a limited civil case.  (Code Civ. Proc., § 904.1.)
  • You cannot appeal a superior court’s de novo review in a small claims case.  (Code Civ. Proc., § 116.780, subd. (a).)
  • The Court of Appeal has discretion to order an appellate division appeal transferred to it when the appellate division certifies that such transfer "is necessary to secure uniformity of decision or to settle an important question of law.”  (Rules 8.1002 & 8.1005.)  The Court of Appeal approves a transfer only in exceptional circumstances and is not bound by the appellate division’s certification.  The Court of Appeal also may order transfer on its own motion, or on a party’s petition, but the Court has limited time to do so.  (Rule 8.1008.)


BRIEFS & APPENDICES



See rule 8.29 for service on a nonparty public officer or agency.  See Judicial Council form APP-004 for a list of examples of statutory requirements.

If your deadline to file a document or brief falls on a day the Court of Appeal is closed (such as a Saturday, Sunday or holiday), your filing deadline is automatically extended to the next day in which the court is open.  (Code Civ. Proc., § 12a.)  Click here for a list of court holidays and court hours.

In civil cases with multiple appeals, the parties must submit to the Court of Appeal a proposed briefing sequence (preferably by joint agreement) within 20 days after the second Notice of Appeal is filed or within 20 days from notification in civil appeals not selected for mediation or where mediation is not successful.  (Rule 8.216(a).)

How are the briefs being filed?


 

Filing Electronically

  • Briefs filed electronically must be in PDF format, or readily capable of conversion to PDF format while maintaining original document formatting by TrueFiling to permit text searches and to facilitate transmission and retrieval.
  • No brief shall exceed a total file size of 25 megabytes.
  • Pages in a brief must be consecutively numbered beginning from the cover page of the brief to the final page and using only the Arabic numbering system, as in 1, 2, 3.  Notwithstanding rule 8.204(b)(7), briefs may not have different numbering systems.
  • Do not use Roman numerals or any other pagination method for tables or anywhere else within the brief.  The page numbers listed in the Table of Contents or Indices must match both the pages within the brief and the Adobe page counter.  This allows the court and the parties to accurately locate the cited pages and ensures that page citations are consistent throughout the brief.
  • Briefs must comply with the content and form requirements of rule 8.204, with the exception of those provisions dealing exclusively with requirements for paper.
  • Each topic heading in the table of contents or index for each document, including the heading “Table of Contents” or “Index,” must be electronically bookmarked.
  • A TrueFiling user ID and password is the equivalent of an electronic signature for a registered attorney or party.  Any document displaying the symbol “/s/” with the attorney’s or party’s printed name shall be deemed signed by that attorney or party.
  • Noncomplying briefs will be rejected and the party will receive an email notification explaining the reason(s) for the rejection.


Electronic Transmission of Appendices, Agreed Statements, Settled Statements and Reporter’s Transcripts
Parties must submit any appendix filed pursuant to rule 8.124, any agreed statement filed pursuant to rule 8.134, or any settled statement filed pursuant to rule 8.137 in electronic form through TrueFiling.

  • Each part of the record submitted in any appendix shall clearly state the volume and page numbers included within that part and include an index of contents, with a descriptive electronic bookmark to the first page of each indexed document.
  • Notwithstanding rules 8.124(d)(1), 8.144(c)(1), and 8.486(c)(1)(A), when submitting documents electronically, the parties may exceed the 300-page limit as long as the file size is 25 megabytes or smaller.  An appendix that exceeds 25 megabytes can be submitted in segments of 25 megabytes or less.  Each segment must be numbered consecutively from the first page of the first segment to the last page of the last segment, using only the Arabic numbering system, as in 1, 2, 3.  For example, an appendix containing a total of 75 megabytes must be filed in 3 segments containing 25 megabytes or less and must be page numbered consecutively 1 through 900 for the entire document even though it is filed in segments.  The first segment should contain a cover page and the master index for all segments.  These requirements are necessary because the segments are merged together into one document at the court for the court’s use.
  •  Any party who orders a reporter’s transcript of proceedings pursuant to rule 8.130(f)(4) must also request a copy of the transcript in computer-readable format and submit an electronic copy to the Court of Appeal through TrueFiling.


Filing Paper Version

  • One scannable original of any paper brief is required for filing.  Scannable means the paper may not be bound or stapled.
  • Do not include a cardstock or colored cover for any paper brief.
  • The paper must be white or unbleached, 8½ x 11 inches.  (Rule 8.204(b)(1).)
  • You may use both sides of the paper, unless you use a typewriter.  (Rule 8.204(b)(4).)


Pages must be consecutively numbered.  (Rule 8.204(b).)

You may request an expedited briefing schedule, which also may include preference in setting the date for oral argument, by promptly serving and filing a motion for calendar preference with the Court of Appeal.  (Rule 8.240.)

The Court of Appeal will grant preference for statutory reasons, including probate proceedings (Code Civ. Proc., § 44); arbitration (Code Civ. Proc. § 1291.2); eminent domain (Code Civ. Proc., § 1260.010); environmental impact reports (Pub. Res. Code, § 21167.1) and general plans (Gov. Code, § 65752).

In addition, the Court of Appeal may exercise its discretion to grant calendar preference for good cause—for example, because of a party’s age, illness or condition raising “substantial medical doubt of survival.”  (See, e.g., Code Civ. Proc., § 36, subds. (a) & (d).)

Civil Appeals

  • There is a 14,000-word limit for your brief, including footnotes.  You must include a certification of word count at the end of the brief, stating the number of words.  A brief produced on a typewriter must not exceed 50 pages.  (Rule 8.204(c).)
  • There is a 28,000-word limit for combined respondent’s / cross-appellant’s opening brief, or for a combined appellant’s reply brief / cross-respondent’s brief.  (Rule 8.204(c)(4).)
  • You must apply to the Court of Appeal’s Presiding Justice for permission to file a longer brief.  (Rule 8.204(c)(5).)  The court will require you to show good cause.  Please see the Motions/Requests/Dismissals section on how to file and serve the application.


Criminal and Dependency Appeals

  • There is a 25,500-word limit for your brief, including footnotes.  You must include a certification of word count at the end of the brief, stating the number of words.  A brief produced on a typewriter must not exceed 75 pages.  (Rules 8.360(b), 8.412(a).)
  • There is a 51,000-word limit for combined respondent’s / cross-appellant’s opening brief, or for a combined appellant’s reply brief / cross-respondent’s brief.  (Rule 8.360(b)(4).)


You must apply to the Court of Appeal’s Presiding Justice for permission to file a longer brief.  (Rule 8.360(b)(5).)  The court will require you to show good cause and include your proposed brief with your application.  Please see the Motions/Requests/Dismissals section on how to file and serve the application.

Brief Cover
The cover of any brief shall include the following:

  • Brief title (e.g., Appellant’s Opening Brief, Respondent’s Brief, etc.)
  • Case title, Court of Appeal number, and trial court number
  • Trial judge’s or trial judges’ names
  • The name, address, telephone number, California state bar number, and e-mail address of each attorney filing or joining in the brief.


Certificate of Interested Entities or Persons (for civil only)
Include a copy of the Certificate of Interested Entities or Persons (or a copy if previously filed) in your principal brief after the cover and before the tables.  (Rule 8.208(d)(1).)  The contents of the certificate are described in rule 8.208(e)).  Click for Judicial Council form APP-008.

Table of Contents & Table of Authorities
List the sections of the brief in the table of contents, by page number.  The table of authorities should list the cases, in alphabetical order, the statutes, and the other authorities used in the brief.  (Rule 8.204(a)(1)(A).)

Typeface, Margins and Spacing
Use single spacing only for block indented quotations, headings, and footnotes.  The brief text should be 1 ½- or double-spaced.
Use any conventional Roman typeface, but the type size must be at least 13 points.  (Use the same type size for footnotes.)  If your brief is typewritten, you must use pica type.
Consecutively number the pages beginning from the cover page of the brief and use only the Arabic numbering system, as in 1, 2, 3.

Record References
Support any references to the record on appeal with a citation to the volume and page number of the clerk’s transcript, reporter’s transcript, or appendix where the matter appears.  Citation to line numbers is optional.
Here are some suggested abbreviations for your record references:

  • Clerk’s Transcript – “CT”  For example, to cite to Vol. 4 of the clerk’s transcript, page 206, use “4 CT 206”
  • Reporter’s Transcript – “RT”  For example, to cite to Vol. 20 of the reporter’s transcript, page 1955, through page 1957, use “20 RT 1955-1957”
  • Joint Appendix – “JA”  For example, to cite to pages 405 through 407 of a single volume Joint Appendix, use “JA 405-407”
  • Appellant’s Appendix – “AA”  For example, to cite to Vol. 3 of an Appellant’s Appendix, page 692, through page 693, use “3 AA 692-693”
  • Respondent’s Appendix – “RA”
  • Appellant’s Reply Appendix – “ARA”


Citation References
Use italics or underlining for case cites.

The comments to the appellate rules “encourage” you to follow the most recent edition of the California Style Manual in your briefs and papers on appeal.  See rule 8.204, Advisory Committee Comment.  Here are some examples of citations using the California Style Manual.

  • Case Citations
    The first time an opinion is cited in full, indicate the year of filing in parentheses immediately following the title.  You do not have to include parallel citations.  Caution:  Rule 8.1115(a) prohibits courts and parties from citing or relying on opinions neither certified for publication nor ordered published.  However, while review is pending, a published opinion of a Court of Appeal may be cited for potentially persuasive value only, unless the Supreme Court states otherwise.  (Rule 8.1115(e).)

    (Fair v. Bakhtiari (2006) 40 Cal.4th 189.)
    (Pico v. Sepulveda (1885) 66 Cal. 336.)
    (City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1564.)
    Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1555 (dis. opn. of Crosby, J.)
    (United States v. X-Citement Video, Inc. (1994) 513 U.S. 64, 77.)
    (Craig v. United States (9th Cir. 1936) 81 F.2d 816.)
    (Dworkin v. Hustler Magazine, Inc. (D.C.Wyo. 1985) 611 F.Supp. 781.)
    California Public Records Research, Inc. v County of Stanislaus (Apr. 28, 2016, F070601) ___ Cal.App.4th ___ <http://www.courts.ca.gov/opinions> (used as example of recently filed opinion)
    (In re Fair Wage Law (Dec. 7, 2006, G037378) [nonpub. opn.].) (where appropriate to cite unpublished opinion under rule 8.1115(b))
    (Donato v. Moldow (N.J. Super.Ct.App.Div. 2005) 865 A.2d 711, 720-727.)
     
  • Statutes & Rules
    (Cal. Const., art. VI, § 10.)
    (U.S. Const., art. I, § 5, cl. 3.)
    Civil Code section 51
    (Bus. & Prof. Code, § 16700 et seq.)
    (Cal. Rules of Court, rule 8.200(a)(5).)
    (Ct App., Fourth Dist., Div. Three, Internal Practices and Proc., III A, Procedures for Processing Cases.)
     
  • Treatises
    (4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, §§ 977-978.)
    (Eisenberg et al., Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 1997) ¶¶ 8:15 to 8:18, pp. 8-4 to 8-6 (rev. # 1, 1998).)
     
  • Law Reviews & Books
    Deason, Enforcing Mediated Settlement Agreements:  Contract Law Collides With Confidentiality (2001) 35 U.C. Davis L.Rev. 33.
    (Patel, Immunizing Internet Service Providers From Third Party Internet Defamation Claims:  How Far Should Courts Go? (2002) 55 Vand. L.Rev. 647, 684.)
    (Rifkin, The Biotechnical Century (1998) pp. 137-139.)
    (Aragaki et al., A Litigator’s Guide to Effective Use of ADR in California (Cont.Ed.Bar 2005) §§ 12.14, 12.19.)


Attachments
You may include up to 10 pages of exhibits or other materials in the appellate record to the end of your brief.  You may not attach materials that are outside the appellate record.  (Rule 8.204(d).)

Joinder
If you are a party to an appeal, you may join in or adopt by reference all or part of another party’s brief.  (Rule 8.200(a)(5).)

Noncomplying Briefs
The Court of Appeal may refuse to accept your brief for filing if it does not comply with the court rules.  Instead, it may be marked “received but not filed” and returned to you.  Even if a noncomplying brief is accepted for filing, the Court of Appeal on its own motion may later decide to return it for corrections and refiling.


EXTENSIONS



Civil Appeals

  • Stipulations.  (Rule 8.212(b).)  You may extend time to file a brief by up to 60 days by securing a stipulation from your opponent (also see rule 8.42).  The stipulation must be filed in the Court of Appeal before your brief is due, and becomes effective on filing.  (Rule 8.212(b)(2).)  Include a proof of service on opposing counsel and upon your client.  The proof of service does not have to include the client’s address (rule 8.60(f)).
  • Applications to Extend Time.  (Rule 8.60(c).)  If the other side refuses to stipulate, or if you need more time beyond the stipulation, you must file an application for an extension.  (Rule 8.212(b)(3).)  You may use Judicial Council form APP-006 for extension requests.
  • Good Cause Requirement.  Include specific facts to show good cause why the application should be granted.  Explain when the brief is due, how long an extension is requested, the length of the record (by number of pages),whether the party has received a notice under rule 8.220(a), and whether any prior extensions have been granted, their length and whether granted by stipulation or by the court.  (Rules 8.60(c) & 8.63(b).)  In determining good cause, the Presiding Justice considers such factors as:  the degree of prejudice to any party, the position of the client and the opponent, the length of the record, the number and complexity of the issues raised, whether the case is entitled to priority, and specific obligations of counsel in other cases, among other factors.  (See rule 8.63.)
  • Opponent’s Position.  It is helpful, and will speed the processing of an application, if you indicate the position of opposing counsel in a declaration indicating when opposing counsel was contacted and his/her response.
  • Proposed Order.  Parties need not include a proposed order with an extension of time request or stipulation.
  • Proof of Service.  Include a proof of service on opponent and upon your client.  The proof of service does not have to include the client’s address.  (Rule 8.60(f).)
  • Electronic Filing Requirements – Mandatory for Attorneys (unless exempted) and permissible for Self-Represented Litigants.  File and serve your extension request with the Court of Appeal through TrueFiling.  If your opponent is self-represented and not participating in TrueFiling, serve opponent a paper copy of the extension request.
  • Filing Requirements for Paper Request.  File an original extension request with the Court of Appeal and serve copies of extension request on your opponent.  In addition, you must supply sufficient copies of the application and addressed, postage-paid envelopes for the court’s use to mail a copy of the court’s order on you and any other party.  (Rule 8.50(c).)  Once the court has ruled on the request, it will conform the copies and mail them to the parties in the envelopes provided.


Criminal Appeals & Dependency Appeals
(Except termination of parental rights appeals)

  • You cannot stipulate to extend the time for filing a brief in a criminal case or a dependency matter.  (Rules 8.360(c)(4) & 8.412(c).)
  • You may apply to the Presiding Justice for an extension on a showing of good cause.  (Rules 8.60, 8.360(c)(4) & 8.412(c).)  Your request must contain specific facts showing good cause for granting the application and state when the brief is due, how long an extension is requested, whether a default notice has been issued, and whether any prior extensions have been granted and their length.  (Rules 8.50, 8.60(c), and 8.63(b).)  In determining good cause, the Presiding Justice considers the factors listed in rule 8.63(b).
  • Electronic Filing Requirements – Mandatory for Attorneys (unless exempted) and permissible for Self-Represented Litigants.  File and serve your extension request with the court through TrueFiling.  You must include a proof of service on all parties to the appeal.
  • Filing Requirements for Paper Request – File an original extension request with the court.  You must include a proof of service on all parties to the appeal.
  • Once the court has ruled on the request, it will return a conformed copy of your document if you provide a self-addressed, postage-paid envelope for that purpose.


Termination of Parental Rights Appeals

  • You may apply to the Presiding Justice for an extension of time, but you must show “exceptional” good cause.  (Rules 8.416(f), 8.450(d).)  Your request must contain specific facts to meet this very high standard and must state when the brief is due, how long an extension is requested, whether a default notice has been issued, and whether any prior extensions have been granted and their length.  (Rules 8.50, 8.60(c) & 8.63(b).)  In determining exceptional good cause, the Presiding Justice considers the factors listed in rule 8.63(b), including the priority granted to dependency proceedings.
  • Electronic Filing Requirements – Mandatory for Attorneys (unless exempted) and permissible for Self-Represented Litigants.  File and serve your extension request with the Court of Appeal through TrueFiling.  You must include a proof of service on all parties to the appeal.
  • Filing Requirements for Paper Request – File an original extension request with the Court of Appeal.  You must include a proof of service on all parties to the appeal.
  • Once the court has ruled on the request, it will return a conformed copy of your document if you provide a self-addressed, postage-paid envelope for that purpose.


Notices for Failure to Timely File a Brief

  • For civil appeals, the notice gives you an additional 15 days from the date of mailing for your appellant’s opening brief or respondent’s brief.  (Rule 8.220(a).)  You may apply to the Presiding Justice for a further extension of time within the time period and a showing of good cause.  (Rule 8.220(d).)
  • For criminal appeals and dependency appeals excluding termination of parental rights appeals, the notice gives you an additional 30 days within which to file your appellant’s opening brief or respondent’s brief.  (Rules 8.360(c)(5) & 8.412(b)(5).)  In dependency appeals excluding termination of parental rights appeals, you may apply to the Presiding Justice for a further extension of time within the time period and a showing of good cause.  (Rule 8.412(b)(5).)
  • For termination of parental rights appeals, the notice gives you an additional 15 days within which to file the brief.  (Rule 8.416(g).)  Further extensions require a showing of “exceptional” good cause.  (Rule 8.416(f).)


If the court does not receive your brief or extension of time by the time specified in the notice, your case may be dismissed or the court may impose any other sanctions specified in the notice.

See rule 8.42 for signature requirements.


MOTIONS / REQUESTS / SETTLEMENTS / DISMISSALS



DOCUMENT
FILING PROCEDURE WITH COURT OF APPEAL
w/ proof of service on all parties
SERVICE PROCEDURE
  • Motions & applications
  • Original only
  • 1 copy on each party
  • Oppositions to motions
  • 1 copy on each party
  • Replies to oppositions to motions
  • 1 copy on each party
  • Original only
  • 1 copy on each party

When electronically filing a motion to augment in a civil appeal,

  • Electronically submit documents you want to become part of the appellate record as a separate PDF file at the same time as the motion; and
  • Ensure such documents are formatted in compliance with the Court of Appeal’s local rule.  (Fifth Dist. Ct. of Appeal, Local Rules of Ct., rule 8(b).)
  • Notwithstanding rules 8.124(d)(1), 8.144(c)(1) and 8.486(c)(1)(A), you may exceed the 300-page limit when submitting documents electronically as long as the file size is 25 megabytes or smaller.

Requests for judicial notice must be made by separate motion.  Requests for judicial notice may not be included within a brief alone.  (Rule 8.252(a)(1).)  Explain the relevance of the matters sought to be noticed.  Provide a copy of the matter to be judicially noticed, or explain why it is not practicable to do so.  (Rule 8.252(a)(2) & 8.252(a)(3).)  The court may immediately rule on the request for judicial notice or may defer the ruling until it decides the merits of the appeal.

When electronically filing a judicial notice request,

Appellate sanctions are only awarded on a party’s motion or on the court’s own motion.  Sanctions requests may not be included in appellate briefs.  The court will not consider a sanctions request that is only made in a party’s brief.  A party’s motion for sanctions must be served and filed no later than 10 days after an appellant’s reply brief is due.  (Rule 8.276(b).)

Grounds include:  taking a frivolous appeal, appealing solely to cause delay, unreasonably violating court rules or a court order, and filing an appendix that contains inaccurate copies of documents.  (Rules 8.124(g) & 8.276(a).)

The court will provide written notice to the parties if it is considering sanctions.  Only then should the opposing party file an opposition to the sanctions motion.  Any opposition must be served and filed within 10 days after the court gives such notice.  (Rule 8.276(d).)  Oral argument on the sanctions motion usually is heard in conjunction with the appeal on the merits.

If the record on appeal has not been filed in the Court of Appeal and an appellant wishes to abandon the appeal or the parties have reached an agreement for an abandonment, a written abandonment by appellant or a stipulation for abandonment must be filed with the clerk of the superior court.  The clerk of the superior court will then forward it to the Court of Appeal.  (Rules 8.244(b)(1) & 8.57(a).)

If the record on appeal has been filed in the Court of Appeal and an appellant wishes to dismiss the appeal or the parties have reached an agreement for dismissal, a written request by appellant or a stipulation for dismissal must be filed with the clerk of the Court of Appeal.  If the parties stipulate to dismiss the appeal in a civil matter, the parties also may stipulate to an order on costs and an immediate issuance of the remittitur.  If there is no such stipulation, respondent will be awarded costs and the remittitur will be issued on the 61st day after the filing of the order to dismiss.  In criminal or juvenile appeals, the parties may stipulate to an immediate issuance of the remittitur; otherwise the remittitur will be issued on the 61st day after the filing of the order to dismiss.

If a respondent wishes to dismiss the appeal, the respondent must file the motion to dismiss the appeal with the Court of Appeal.

The Court of Appeal accepts only original signatures on paper documents that require a signature.  The original signature of at least one party must appear on a paper stipulation for extension of time; the signatures of other parties may be in the form of copies of the signed signature page of the stipulation.  (Rule 8.212(b).)

Electronically filed documents are deemed signed by the party.  Please refer to rule 8.77 for further requirements.


ORAL ARGUMENT / OPINION / REMITTITUR



Litigants, including counsel and parties representing themselves, and media may bring a laptop or tablet device for use during oral argument.  Such e-devices must be silenced and placed in “airplane mode.”  No audio or video recording or photography of oral argument is permitted without prior court approval (rule 1.150).  Anyone who fails to comply with these restrictions may be removed from the courtroom.  The Court does not require prior notification or an application when litigants bring e-devices to oral argument.

You must make any request to continue oral argument no later than 10 days after mailing of the Calendar Notice.  Your written request must state the other side’s position.  The court will only entertain requests for continuance submitted less than 10 days before oral argument in a true emergency situation.

The court does not transcribe oral arguments.  However a recording is available for purchase.

Requests for a recording may be made in person, by mail or telephone call to the court.  A fee of $20 must be paid prior to preparation and delivery of the recording.  Payment by check, money order or credit card is acceptable.  Checks or money orders should be made payable to “Court of Appeal.” Credit card payments may be arranged over the telephone.  The recording of an oral argument can be picked up in person or delivered by United States Postal Service.

The “Submission” Date.  The “submission” date triggers the deadline for appellate decisions.  The Court of Appeal files a written opinion within 90 days after a case has been submitted for decision.  (Gov. Code, § 68210; Cal. Const., art. VI, § 19.)

Oral Argument Cases.  A case is generally “submitted” at the end of oral argument, as directed by the Presiding Justice.  However, if the Presiding Justice allows the parties to submit supplemental postargument letter briefs, the Court of Appeal will deem the case submitted when the supplemental briefs are due or have been filed.  (Rule 8.256(d)(1).)

Waived Cases.  If there is no oral argument, the case is submitted when the court has accepted the waiver of oral argument and all briefs and papers have been filed.  (Rule 8.256(d)(1).)

Vacating Submissions.  The Court of Appeal may vacate the submission of a case for good cause (for example, to consider the impact, if any, of a new Supreme Court opinion or to consider diverging views by one or more panel members).  The resubmission order will trigger a new deadline for the decision.  (Rule 8.256(e).)

DOCUMENT
TIME FRAMES FOR FILING
SERVICE PROCEDURE
  • Petition for rehearing
    (Civil)
  • within 15 days from date opinion is filed
  • 1 copy on superior court
  • 1 copy on each party
  • Petition for rehearing
    (Criminal)
  • within 15 days from date opinion is filed
  • 1 copy on superior court
  • 1 copy on Attorney General
  • 1 copy on District Attorney
  • 1 copy on Defendant (if appointed counsel)
  • Answer to petition
    (Civil)
  • To be filed only upon the court’s request and if so, within 8 days of the court’s request unless the court orders otherwise.
  • 1 copy on superior court
  • 1 copy on each party
  • Answer to petition
    (Criminal)
  • To be filed only upon the court’s request and if so, within 8 days of the court’s request unless the court orders otherwise.
  • 1 copy on superior court
  • 1 copy on Attorney General
  • 1 copy on District Attorney
  • 1 copy on Defendant (if appointed counsel)

The court retains jurisdiction for 30 days from the filing of its opinion.  If it fails to act on the petition within the 30-day period, the petition will be deemed denied.  (Rules 8.264(b)(1) & 8.268(c).)

The court has jurisdiction over an appeal for 30 days from the date the opinion was filed or a request for publication was granted or an opinion was modified in a manner that changed the judgment.  The Court of Appeal cannot modify or change an opinion or grant rehearing after an opinion becomes final.  (Rules 8.264(b)(1), 8.264(b)(3), 8.264(c)(2), 8.268(a)(2) & 8.268(c).)

While the court may shorten the time for finality for good cause, it may not extend it.  (Rules 8.264(b)(3), 8.264(c), 8.268(c) & 8.490(b).)  Dismissals of appeals on request or stipulation become final immediately, as do summary denials of writ petitions.  (Rule 8.264(b)(2).)

The parties only have 10 calendar days from the date of finality to file a petition for review with the California Supreme Court.  (Rule 8.500(e).)

The court will issue a remittitur, the document which returns jurisdiction to the superior court, 61 days after the filing of the opinion, barring any time extensions by the Supreme Court.  In civil cases, the remittitur alerts counsel to file their cost bill in the superior court.  (See rule 8.278.)  Counsel have 40 days from the date the remittitur issues to file a memorandum of costs in the superior court as prescribed by rule 3.1700.

The court considers the factors set forth in rules 8.1105 and 8.1110 in evaluating whether an opinion should be published, in full or in part.  Those factors include whether the opinion:

  • Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, explains, or criticizes, with reasons given, an existing rule;
  • Resolves or creates an apparent conflict in the law;
  • Involves a legal issue of continuing public interest; or
  • Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.


The court will also consider requests for an opinion to be published.  (See rule 8.1120.)

WRITS



DOCUMENT
ELECTRONIC FILING PROCEDURE
SERVICE
  • Petition
  • original electronically filed
  • 1 copy on superior court
  • 1 copy on each party
  • Exhibits to a petition
  • original electronically filed
  • must be filed concurrently with petition
  • Exhibits must contain a table of contents listing exhibits by document title and corresponding number or letter and be consecutively paginated.
  • 1 copy on each party
  • Opposition to petition
  • original electronically filed
  • 1 copy on superior court
  • 1 copy on each party
  • Reply to opposition
  • original electronically filed
  • 1 copy on superior court
  • 1 copy on each party

  • Electronic documents should be formatted consistent with Fifth District Court of Appeal, Local Rules of Court, rule 8.
  • Documents filed electronically must be in PDF format while maintaining original document formatting by TrueFiling to permit text searches and to facilitate transmission and retrieval.
  • If the filer possesses only a paper copy of a document, it may be scanned to convert it to a searchable PDF format.  It is the filer’s responsibility to ensure that any document filed is complete and readable.
  • No single document shall exceed a total file size of 25 megabytes.
  • Documents must comply with the content and form requirements of the Rules of Court related to the filing of writ petitions (see rules 8.112, 8.384, 8.486 & 8.495-8.498) with the exception of those provisions dealing exclusively with requirements for paper.
  • Neither petitions nor exhibits may have different numbering systems.
  • Document pages must be consecutively numbered beginning from the cover page of the document and using only the Arabic numbering system, as in 1, 2, 3.
  • Do not use Roman numerals or any other pagination method for tables or anywhere else within the document.  Ensure the page numbers listed in the Table or Contents or Indices match both the pages within the document and the Adobe page counter.  This allows the court and the parties to accurately locate the cited pages and ensures that page citations are consistent throughout the document.
  • Documents must include electronic bookmarks from the table of contents for each heading in the text (including the text “Table of Contents”), and to the first page of any exhibit(s), with a description of the exhibit included in the bookmark.
  • In a document containing multiple volumes, pages must be numbered consecutively from the first volume to the last volume, using only the Arabic numbering system, as in 1, 2, 3.  For example, if there were three volumes of exhibits to a petition, containing 300 pages each, the exhibits must be page numbered 1-900.  The first volume should contain a master index for all volumes bookmarked.  These requirements are necessary because the volumes are merged together at the Court of Appeal.
  • When exhibits are submitted in multi-part electronic files, only one table or index stating the contents of the entire document is required, at the beginning of the document.  The table or index should include the bookmarks as noted above.
  • Notwithstanding rules 8.144(c)(1) and 8.486(c)(1)(A), you may exceed the 300-page limit when submitting documents electronically as long as the file size is 25 megabytes or smaller.


A TrueFiling user ID and password is the equivalent of an electronic signature for a registered attorney or party.

DOCUMENT
PAPER FILING PROCEDURE
SERVICE
  • Petition
  • One scan-ready original (see above)
  • 1 copy on superior court
  • 1 copy on each party
  • Exhibits to a petition
  • One scan-ready original (see above)
  • Must be filed concurrently with petition
  • Exhibits must contain a table of contents listing exhibits by document title and be consecutively paginated. If there are multiple volumes of exhibits, the table of contents must be comprehensive, i.e., covering all volumes.
  • 1 copy on each party
  • Opposition to petition
  • One scan-ready original (see above)
  • 1 copy on superior court
  • 1 copy on each party
  • Reply to opposition
  • One scan-ready original (see above)
  • 1 copy on superior court
  • 1 copy on each party

A $775 filing fee is required on all writ petitions except for criminal proceedings, juvenile matters, Workers’ Compensation Appeals Board (WCAB) writs of review, and all petitions for a writ resulting from contempt proceedings.  A $775 filing fee is also required for a petition for writ of supersedeas unless already paid with the notice of appeal.  Government agencies are exempt from paying a filing fee.  Payment by check, money order or credit card is acceptable.  Make checks and money orders payable to: “Court of Appeal.”  An indigent petitioner may submit a request for waiver of fees on Judicial Council form FW-001.

The procedural requirements for writ petitions vary depending on the type of petition.  Refer to the following rules of court:


The court shall “receive” but not “file” any original proceeding document that does not comply with Fifth District Court of Appeal, Local Rules of Court, rule 3 or 8.  A party shall have 10 days from notification by the court in which to comply with the local rule.  In the interim, the court will not take any action on the document.

If a party complies with Fifth District Court of Appeal, Local Rules of Court, rule 3 or 8 within the time permitted, the court will determine the timeliness of the document based on the date the document was “received” rather than when it is “filed.”  If a party does not comply with Fifth District Court of Appeal, Local Rules of Court, rule 3 or 8 within the time permitted, the document will be returned to the party and, in the case of a noncomplying petition, the case will be closed.  If you are filing a petition for writ of mandate, certiorari or prohibition (see rules 8.485 & 8.486(a)(6)), your petition must comply with all the requirements stated in rule 8.204.

Emergency Stay Requests

  • In order to facilitate expedited review, you should provide telephone notice to the Clerk’s Office, as early as possible, during business hours on the day you expect to submit a petition requesting an emergency stay.
  • The cover must state "IMMEDIATE RELIEF REQUESTED" and include the date of the requested stay.
  • The cover must include the name and telephone number of the superior court judge whose order the request seeks to stay.  (Rules 8.116(b) (supersedeas), and 8.486(a)(7) (mandate, certiorari and prohibition).)
  • A petition for an extraordinary writ with a request that a stay, injunction, or other form of relief be issued must be personally served on each opposing party prior to filing with the Court of Appeal and be accompanied by a declaration establishing the service or lack thereof.
  • A petition for an extraordinary writ with a request that a stay, injunction, or other form of relief must explain the reason(s) for the urgency and set forth all relevant time constraints.
  • The Clerk’s Office hours are 8:00 a.m.to 4:30 p.m.  Any emergency stay received in paper or electronically after 4:30 p.m. will not be processed until the next business day.


Other Stay Requests
For other temporary stay requests, the document’s cover must prominently display the notice “STAY REQUESTED” and identify the nature and date of the proceeding sought to be stayed.  (See rules 8.116(a) & 8.486(a)(7).)

A petition for writ that seeks review of a superior court ruling must be accompanied by the following:

  • a copy of the order or judgment from which relief is sought; copies of all documents submitted to the superior court supporting and opposing petitioner’s petition;
  • a transcript of the proceedings leading to the order or judgment in the superior court.  Failure to provide an adequate record is grounds for denial; and
  • a proof of service on the clerk of the superior court and opposing counsel.  The proof of service must indicate the party represented by each attorney served and must give the telephone of each attorney.  Providing the State Bar number of each attorney on the proof of service may expedite the processing of your writ petition.

File the petition as soon as you can.  The special rules for overnight delivery of briefs do not apply to writs.  (Rule 8.25(b)(4).)



STATUTORY WRIT PROCEEDINGS

DEADLINE FOR FILING
TYPE OF RULING TO BE CHALLENGED
STATUTORY AUTHORITY
  • 10 days after service of written notice of order
  • Disqualification/challenge of a judge
  • Code Civ. Proc., § 170.3, subd. (d)
  • Quash service denied
  • Code Civ. Proc., § 418.10, subd. (c)
  • 15 days after entry of order denying motion to dismiss
  • Set aside information or indictment
  • Pen. Code, §§ 995, 999a
  • 20 days after service of written notice of order
  • Coordination
  • Code Civ. Proc., § 404.6
  • Expunge lis pendens
  • Code Civ. Proc., § 405.39
  • Good faith settlement
  • Code Civ. Proc., § 877.6, subd. (e)
  • Inspection of public records
  • Gov. Code, § 6259, subd. (c)
  • Reclassify civil action
  • Code Civ. Proc., § 403.080
  • Summary judgment denied or summary adjudication
  • Code Civ. Proc., § 437c, subd. (m)(1)
  • Venue
  • Code Civ. Proc., § 400
  • 20 days after first arraignment
  • Juvenile unfitness
  • 30 days after entry of order granting or denying motion to suppress evidence
  • Suppression of evidence
  • Pen. Code, § 1538.5, subds. (i), (o)
  • 30 days after issuance of final ALRB order
  • Agricultural Labor Relations Board (ALRB)
  • Lab. Code, § 1160.8
  • 30 days after PUC decision on rehearing
  • Public Utilities Commission (PUC)
  • Pub. Util. Code, § 1756
  • 45 days after denial or disposition of reconsideration
  • Workers’ Compensation Appeals Board (WCAB)
  • Lab. Code, § 5950

NONSTATUTORY 60-Day Rule:

  • 60 days after entry of order
  • Any order for which there is no statutory authority for a writ proceeding.
  • Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496

To file a writ petition under seal, the writ petition must be accompanied by either a motion for leave to file under seal or a superior court order sealing the record.  (Rules 8.45, 8.46 & 8.47.)

  • Preliminary Opposition
    You are not required to oppose a writ petition, and you may elect to wait until invited to do so by the court. The court ordinarily will not issue an alternative writ, order to show cause, or a peremptory writ without first inviting a response from you by written notice/order.
    • Filing.  Unless the court specifies a different due date, your preliminary opposition should be served and filed within 10 days after the petition is filed.  (Rule 8.487(a)(1).)  Opposition to a petition for writ of supersedeas is due within 15 days, unless the court orders a different time.  (Rule 8.112(b)(1).)  There are no filing fees.
    • Certificate of Interested Entities.  Include a copy of the Certificate of Interested Entities or Persons in your preliminary opposition, or, if no opposition is filed, in your return, if any.  (Rule 8.488(c)(2).)  Click here for Judicial Council form APP-008.
    • Contents.  Your preliminary opposition should explain or correct any factual or legal inadequacies in the petition and should point out why writ relief is not appropriate or why the petitioner has other remedies.  The preliminary opposition need not contain a full-blown legal analysis.  If necessary, you will have another chance when you file your return.
    • Palma Notice.”  When you receive a “Palma notice” (that the court is considering issuing a peremptory writ in the first instance), your opposition should fully and completely brief the legal and factual issues, since this may be your only opportunity to do so.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
  • Return
    You should file a return if the court issues an order to show cause or an alternative writ.  (Rule 8.487(b).)
    • Certificate of Interested Entities.  Include a copy of the Certificate of Interested Entities or Persons if you did not previously include it in your preliminary opposition, if any.  (Rule 8.488(c)(2).)  Click here for Judicial Council form APP-008.
    • Filing.  The return is due on the date specified by the court; if no date is specified, the return is due within 30 days after the court issues the alternative writ or order to show cause.  (Rule 8.487(b)(2).)  The return is deemed filed when received by the clerk’s office.  The special rules for overnight delivery of briefs do not apply to writs.  (Rule 8.25(b)(4).)  There are no filing fees.
    • Contents.  The return, like the petition, is a pleading, and should contain the return itself (in the form of a verified answer, demurrer or both), a table of contents and table of authorities, a legal memorandum of points and authorities, and a certificate of the word count, not to exceed 14,000 words.  (Rules 8.204(c)(1), 8.485(a) & 8.486(c)(1)(C).)
    • Verification.  The return should include a statement of “any material fact not included in the petition,” but if you do include such facts, you must verify them.  (Rules 8.487(a)(2) & 8.487(b)(1).)  Also, use the verified answer to deny any material facts alleged in the petition.  Without a verified answer, the court may accept petitioner’s factual allegations as true.
    • Palma Notice.”  When you receive a “Palma notice” (that the court is considering issuing a peremptory writ in the first instance), your return should fully and completely brief the legal and factual issues, since this may be your only opportunity.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

Reply to Preliminary Opposition
A petitioner may file an optional reply in support of a writ petition after receiving preliminary opposition from the other side.  You may serve and file a reply within 10 days after the preliminary opposition is filed.  (Rule 8.487(a)(3).)  But be aware that the writ panel already may have reached a decision on your writ petition before this time!

Reply to Return
You may have a longer period of time to file a reply if the court issues an alternative writ, order to show cause or a “Palma notice” (that the court is considering issuing a peremptory writ in the first instance).  The court usually will specify the deadline for such a reply in the alternative writ or order to show cause.  If it does not, you have 15 days to serve and file a reply after the return or opposition is filed.  (Rule 8.487(b)(3).)

Filing with the Appellate Division
You should file a writ petition challenging a ruling in a limited civil case with the Appellate Division of the Superior Court, not with the Court of Appeal.  That is because the Appellate Division is the next higher court capable of granting relief.
The rules for writ proceedings in the Appellate Division are contained in rules 8.800-8.936.

Filing with the Court of Appeal

  • If you do choose to file a writ petition with the Court of Appeal from a ruling in a limited civil case, you must indicate whether you have previously filed a writ petition with the Appellate Division and, if so, how the Appellate Division ruled.  Attach a copy of the Appellate Division’s decision.
  • If you have not previously filed with the Appellate Division, you must specify the extraordinary circumstances making it proper to file the petition with the Court of Appeal in the first instance.  (Rule 8.486(a)(1).)
  • Since the Appellate Division is the proper forum for appellate review of rulings in limited civil cases, you probably cannot get a “second bite at the apple” from the Court of Appeal.  Your writ petition should explain why your case involves a public interest issue of statewide importance, or why writ review by the Court of Appeal is necessary to settle an important question of law.


Appellate Division Transfers
Appellate division transfers are considered under Code of Civil Procedure section 911 and rule 8.1000 et seq.  Under the rules of court, transfer may be ordered only where the appellate division has either published its opinion or certified the case for transfer or upon a party’s petition to transfer.  The Court of Appeal has “uncontrolled discretion” to grant or deny transfer.  (Dvorin v. Appellate Dept. (1975) 15 Cal.3d 648, 650.)  Transfer will be ordered only if the Court of Appeal determines “that transfer is necessary to secure uniformity of decision or to settle an important question of law.”  (Rule 8.1002.)

A writ panel, consisting of three Justices, discusses the merits of the writ petition and decides upon an appropriate remedy.  The writ panel has a number of procedural options.

  • Summary Denial.  The writ panel may deny the writ petition without opposition, or the writ panel may issue an order denying the writ after preliminary opposition has been filed or after the deadline for preliminary opposition has passed.
    • The writ petition or stay request may be summarily denied if the petitioner does not submit an adequate record or explain why some documents are missing and what they would have contained.  The writ petition or stay request also may be rejected or delayed if the petitioner does not meet other procedural requirements for service (including personal service for requests for emergency stays), verification, certificate of interested entities.  (Rule 8.486(b)(4).)  If a transcript of the hearing has been ordered, but is not yet available, the writ petition may be delayed until the transcript arrives.  (Rule 8.486(b)(3)(A).)
    • There is no right to an oral argument for a summary denial.
    • A summary denial of a writ petition is final immediately, and the court loses jurisdiction over the matter.  (Rule 8.490(b)(1).)
    • Alternative Writ.  The writ panel may issue an alternative writ to provide the superior court with a second chance to change its ruling.  The alternative writ directs the petitioner to serve the alternative writ upon the superior court and provides the court an additional period of time in which to comply with the alternative writ.
    • If the superior court complies with the alternative writ and reverses its ruling, the petitioner should immediately notify the Court of Appeal.  In turn, the Court of Appeal will dismiss the writ petition as moot.
    • If the superior court does not comply with the alternative writ, the alternative writ usually will specify a deadline for a return to be filed by the real party in interest, and for an optional reply to be filed by petitioner.  (Rule 8.487(b).)  [Note: if the court does not set a deadline, the return is due within 30 days, and the reply is due within 15 days.]  (Rule 8.487(b)(2) & (3).)  The alternative writ also may set a date for oral argument, and the matter ultimately will be decided by written opinion with reasons stated.  The opinion becomes final 30 days after filing, unless the court grants earlier finality in the interests of justice.  (Rule 8.490(b)(2)(A).)
  • Order to Show Cause.  If the Court of Appeal wants further briefing and argument on the issues raised by the writ petition, the court will directly issue an order to show cause (OSC) to the real party in interest without issuing an alternative writ.  The order to show cause will specify a deadline for the real party’s “return” and for the petitioner’s reply.  (Rule 8.487(b).)  The order to show cause also may set a date for oral argument.  The court will file a written opinion whether or not relief is granted.  The opinion becomes final 30 days after filing, unless the court grants earlier finality in the interests of justice.  (Rule 8.490(b)(2)(A).)
  • Peremptory Writ.  Peremptory writs are reserved for exceptional situations where either (i) some “unusual urgency” justifies acceleration of the normal writ process or (ii) petitioner’s entitlement to relief is “so obvious that no purpose could reasonably be served by plenary consideration of the issue.”  This may occur where there has been clear error under well-settled principles of law and undisputed facts.  (See Lewis v. Superior Court (1999) 19 Cal.4th 1232.)
    • “Palma Notice.”  The Court of Appeal will not issue a peremptory writ in the first instance unless you have been given what is called a “Palma notice.”  (The name of the notice comes from the California Supreme Court decision in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)  The Palma notice puts the real party in interest on notice that the court may issue a peremptory writ in the first instance, without a prior alternative writ.
      • You may receive a Palma notice in the prayer of the petition itself if the petitioner asks the Court of Appeal to issue a peremptory writ in the first instance.
      • The Court of Appeal may issue a Palma notice by separate court order.
    • The court may (or may not) decide to have oral argument on peremptory writs.
    • A written opinion granting a peremptory writ in the first instance becomes final 30 days after filing, unless the court grants earlier finality in the interests of justice.  (Rule 8.490(b)(2)(A).)

The Court of Appeal is not bound by a time limit for ruling on a petition.  The consideration of any particular writ petition depends upon the urgency of the relief requested, the adequacy of the record, whether preliminary opposition is requested, the size and complexity of the writ petition, and any other matters for the writ panel to consider.


RECORD RETRIEVAL



The court accepts requests for copies of any public document within the case file.  Requests can be made by phone to the Clerk’s Office at 559-445-5491, or in writing.  The court will duplicate your request at $.50/page; depending on the size of the copy job, payment may be required in advance.  Self-copying is available with the copy machine provided in the Clerk’s Office lobby at $.25/page.  Self-copying is free of charge if portable duplication equipment is brought to the court and you or a copy service does the copying.  Payment by cash, check, money order or credit card is accepted.  Checks or money orders should be made payable to “Court of Appeal.”

Most case dockets may be obtained online.

Records may be viewed in the Clerk’s Office lobby during regular office hours. You should call ahead to verify the record is available before visiting.

  • It is best to call the Clerk’s Office to verify the availability of the record and make arrangements to have it retrieved.  Alternatively, you may fax or mail in your request.
  • If you have the case number for the record you wish to view, the retrieval fee for each box in offsite storage is $25.  If a search is required because you do not have the case number for the record you wish to view, the retrieval fee for each box in offsite storage is $50.  Payment of such fees is due before the record can be retrieved.  Payment by check, money order or credit card is acceptable.  If you are paying by check or money order, make it payable to the “Court of Appeal.”

The party seeking certification must submit a true and accurate copy of the document to be certified. The remittitur can only be certified by the trial court. A document may be certified over the counter or if mailed it will take three to five days once the documents are received by the Court of Appeal. A $1 fee for each certification will apply.

The Court’s files are public records available for viewing unless a file is confidential or has been sealed.  Juvenile, paternity, and mental health files are confidential and not available for public viewing.  Call the Court of Appeal to verify the availability of the record before visiting.  Inactive cases may be offsite.

You may not take Court of Appeal files offsite under any circumstances.  Records may only be viewed in the lobby.

A file requested from offsite storage takes three to five business days to retrieve.

Public records will be made available for viewing for as long as the individual needs, unless the Court of Appeal or Supreme Court requires the file for its review.

Yes, as well as by check, money order or cash.

Not from the court’s website at this time.

  • The case is under review with the Court—Please contact the Clerk’s Office for more information as to when the record may become available.
  • The case is pending before the Supreme Court—In these circumstances, any part of the record that is not electronic is only available through the Supreme Court. Please contact their San Francisco location at 415-865-7000.
  • The case has been destroyed—The Record Retention Schedule is:
  • Civil Records: 10 years
  • Criminal and Juvenile Records: 20 years


Some records may be preserved locally or archived at the California State Archives in Sacramento.  For more information regarding archived records, please see the California State Archive website at: http://www.sos.ca.gov/archives/.

THE APPELLATE PROCESS


  • The Court of Appeal presumes a trial court judgment is correct and that any trial court error is harmless unless the appellant shows the error is prejudicial.
  • The Court of Appeal will reverse a trial court judgment only if the appellant shows there was prejudicial error.
  • In a civil case, the appellant must present both an adequate record on appeal and an adequate appellant’s opening brief.
  • An adequate record on appeal is one that includes not only the judgment but transcripts and exhibits from the trial court that enable the appellate court to see what happened there.
  • If the appellant contends the evidence was insufficient or unbelievable or that a reasonable trial judge or jury should or could not have believed the testimony of the winning party, the appellant must present all the relevant reporter’s transcripts.
  • An adequate Appellant’s Opening Brief must present identifiable, recognizable issues and support them with understandable arguments that (a) cite the record on appeal and (b) cite pertinent legal authorities.
  • The appellate court will not search the record on appeal to find the support for the appellant’s position.
  • An appellant waives or forfeits any issue not coherently presented in the Appellant’s Opening Brief.


As this court once wrote:  “When practicing appellate law, there are at least three immutable rules:  first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”  (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

© 2017 Judicial Council of California