Rule 8.25. Service, filing, and filing fees
(1)Before filing any document, a party must serve, by any method permitted by the Code of Civil Procedure, one copy of the document on the attorney for each party separately represented, on each unrepresented party, and on any other person or entity when required by statute or rule.
(2)The party must attach to the document presented for filing a proof of service showing service on each person or entity required to be served under (1). The proof must name each party represented by each attorney served.
(Subd (a) amended effective January 1, 2007.)
(1)A document is deemed filed on the date the clerk receives it.
(2)Unless otherwise provided by these rules or other law, a filing is not timely unless the clerk receives the document before the time to file it expires.
(3)A brief, an application to file an amicus curiae brief, an answer to an amicus curiae brief, a petition for rehearing, an answer to a petition for rehearing, a petition for transfer of an appellate division case to the Court of Appeal, an answer to such a petition for transfer, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not expired on the date of:
(A)Its mailing by priority or express mail as shown on the postmark or the postal receipt; or
(B)Its delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.
(4)The provisions of (3) do not apply to original proceedings.
(5)If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.
(Subd (b) amended effective July 1, 2012; previously amended effective January 1, 2007, January 1, 2009, July 1, 2010, and January 1, 2011.)
(c) Filing fees
(1)Unless otherwise provided by law, any document for which a filing fee is required under Government Code sections 68926 or 68927 must be accompanied at the time of filing by the required fee or an application for a waiver of court fees under rule 8.26.
(2)Documents for which a filing fee may be required under Government Code sections 68926 or 68927 include:
(A)A notice of appeal in a civil case. For purposes of this rule, "notice of appeal" includes a notice of cross-appeal;
(B)A petition for a writ within the original civil jurisdiction of the Supreme Court or Court of Appeal;
(C)A petition for review in a civil case in the Supreme Court;
(D)The following where the document is the first document filed in the Court of Appeal or Supreme Court by a party other than the appellant or petitioner in a civil case. For purposes of this rule, a "party other than the appellant" does not include a respondent who files a notice of cross-appeal.
(i)An application or an opposition or other response to an application;
(ii)A motion or an opposition or other response to a motion;
(iii)A respondent's brief;
(iv)A preliminary opposition to a petition for a writ, excluding a preliminary opposition requested by the court unless the court has notified the parties that it is considering issuing a peremptory writ in the first instance;
(v)A return (by demurrer, verified answer, or both) after the court issues an alternative writ or order to show cause;
(vi)Any answer to a petition for review in the Supreme Court; and
(vii)Any brief filed in the Supreme Court after the court grants review.
(3)If a document other than the notice of appeal or a petition for a writ is not accompanied by the filing fee or an application for a waiver of court fees under rule 8.26, the clerk must file the document and must promptly notify the filing party in writing that the court may strike the document unless, within the stated time of not less than 5 court days after the notice is sent, the filing party either:
(A)Pays the filing fee; or
(B)Files an application for a waiver under rule 8.26 if the party has not previously filed such an application.
(4)If the party fails to take the action specified in a notice given under (2), the reviewing court may strike the document, but may vacate the striking of the document for good cause.
(Subd (c) adopted effective October 28, 2011.)
Rule 8.25 amended effective July 1, 2012; adopted as rule 40.1 effective January 1, 2005; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2009, July 1, 2010, January 1, 2011, and October 28, 2011.
Advisory Committee Comment
Subdivision (a). Subdivision (a)(1) requires service "by any method permitted by the Code of Civil Procedure." The reference is to the several permissible methods of service provided in Code of Civil Procedure sections 1010–1020. Information Sheet for Proof of Service (Court of Appeal) (form APP-009-INFO) provides additional information about how to serve documents and how to provide proof of service.
Subdivision (b). In general, to be filed on time, a document must be received by the clerk before the time for filing that document expires. There are, however, some limited exceptions to this general rule. For example, (5) provides that if the clerk receives a document by mail from a custodial institution after the deadline for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing before the deadline expired, the document is deemed timely. This provision applies to notices of appeal as well as to other documents mailed from a custodial institution and reflects the "prison-delivery" exception articulated by the California Supreme Court in In re Jordan (1992) 4 Cal.4th 116 and Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106.
Note that if a deadline runs from the date of filing, it runs from the date that the document is actually received and deemed filed under (b)(1); neither (b)(3) nor (b)(5) changes that date. Nor do these provisions extend the date of finality of an appellate opinion or any other deadline that is based on finality, such as the deadline for the court to modify its opinion or order rehearing. Subdivision (b)(5) is also not intended to limit a criminal defendant's appeal rights under the case law of constructive filing. (See, e.g., In re Benoit (1973) 10 Cal.3d 72.)
Subdivision (b)(3). This rule includes applications to file amicus curiae briefs because, under rules 8.200(c)(4) and 8.520(f)(5), a proposed amicus curiae brief must accompany the application to file the brief.
Subdivision (c). Government Code section 68926 establishes fees in civil cases for filing a notice of appeal, filing a petition a for a writ within the original civil jurisdiction of the Supreme Court or a Court of Appeal, and for a party other than appellant or petitioner filing its first document in such an appeal or writ proceeding in the Supreme Court or a Court of Appeal. Government Code section 68927 establishes fees for filing a petition for review in a civil case in the Supreme Court and for a party other than the petitioner filing its first document in a civil case in the Supreme Court. These statutes provide that fees may not be charged in appeals from, petitions for writs involving, or petitions for review from decisions in juvenile cases or proceedings to declare a minor free from parental custody or control, or proceedings under the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code).
Subdivision (c)(2)(A) and (D). Under rule 8.100(f), "notice of appeal" includes a notice of a cross-appeal and a respondent who files a notice of cross-appeal in a civil appeal is considered an appellant and is required to pay the fee for filing a notice of appeal under Government Code section 68926.
A person who files an application to file an amicus brief is not a "party" and therefore is not subject to the fees applicable to a party other than the appellant or petitioner.
Subdivision (c)(3). Rule 8.100 establishes the procedures applicable when an appellant in a civil appeal fails to pay the fee for filing a notice of appeal or the deposit for the clerk's transcript that must also be paid at that time.