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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.

Rule 7. Record Preparation in Juvenile Appeals and Writs [eff. 12/1/14]

(a) [Application]

This rule applies to record preparation in:

(1) Appeals from judgments or appealable orders in:

(A) Cases under Welfare and Institutions Code sections 300, 601, and 602; and
(B) Actions to free a child from parental custody and control under Family Code section 7800 et seq.; and

(2) Writ petitions under Welfare and Institutions Code sections 366.26 and 366.28.

(b) [Sending the Record]

Within 20 days after a notice of appeal or notice of intent is filed, the clerk of the superior court shall send, by the most expeditious method, the original record to this court, noting the sending date on each original.

In appeals, copies of the record shall be sent at the same time to counsel pursuant to California Rules of Court, rules 8.409(e)(1)(B), (e)(2) and 8.416(c)(2)(B), (c)(3), as applicable.

In writ proceedings under Welfare and Institutions Code sections 366.26 and 366.28, copies of the record shall be sent at the same time to counsel or any unrepresented party pursuant to California Rules of Court, rules 8.450(i)(2) and 8.454(i)(2), as applicable.

(c) [Enforcement]

In the event this court does not receive the original record within 23 calendar days after a notice of appeal or notice of intent is filed, this court shall issue an order directed to the superior court executive officer to deliver the original transcripts to this court within 2 court days. If the superior court executive officer does not comply with this court’s order, an order to show cause may issue.

Rule 8. Electronic Filing

Pursuant to California Rules of Court, rule 8.70, the Court will require all filings in this District, effective December 1, 2014, for all civil filings and effective January 1, 2015, for all criminal and juvenile filings, to be made through the Court’s electronic filing system (EFS) operated by ImageSoft TrueFiling (TrueFiling). Use of the EFS system is mandatory for all attorneys filing in this District, unless an exemption is granted, and is voluntary for all self-represented litigants. A filing in electronic format will be 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.

(a) [Registration]

(1) Obligation to Register. Each attorney of record in any proceeding in this District is obligated to become an EFS user and obtain a user ID and password for access to the TrueFiling system. Self-represented litigants must register if they wish to e-file. Attorneys and self-represented litigants may register at: https://www.truefiling.com/_layouts/ElectronicFile.Main/SignUp.aspx

(2) Obligation to Keep Account Information Current. An EFS user is responsible for all documents filed under the user’s registered ID and password. Registered users are required to keep their e-mail address current and may update their e-mail address online via the TrueFiling Web site.

(b) [Format]
Documents 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. 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 MB.

Electronic briefs must comply with the content and form requirements of California Rules of Court, rule 8.204, with the exception of those provisions dealing exclusively with requirements for paper.

(c) [Signatures]
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/party.

(d) [Trial Court Record]

(1) Appendices, Agreed Statements, and Settled Statements. Parties must submit any appendix filed pursuant to California Rules of Court, rule 8.124, any agreed statement filed pursuant to California Rules of Court, rule 8.134, or any settled statement filed pursuant to California Rules of Court, rule 8.137 in electronic form. Appendices exceeding ten volumes may be delivered to the court on machine readable optical media in lieu of e-Filing.

(2) Administrative Records. In addition to any administrative record provided by the trial court pursuant to California Rules of Court, rule 8.123, the party or parties seeking review or a board under California Rules of Court, rule 8.498(b) must submit a copy of the administrative record in electronic form. An administrative record may be delivered to the court on machine readable optical media in lieu of e-Filing.

(3) Reporter’s Transcripts. Any party who orders a reporter’s transcript of proceedings pursuant to California Rules of Court, rule 8.130 must also request a copy of the transcript in computer-readable format, as provided in California Rules of Court, rule 8.130(f)(4), and submit an electronic copy to the Court.

Should the record of trial court proceedings exceed the TrueFiling size limitations, a party must either (a) submit the record in multiple parts, or (b) provide the Court with the record in digital format on machine readable optical media.

(4) Submissions by the Trial Court. The trial court is required to submit the clerk’s transcript in civil appeals in searchable PDF format, either through the TrueFiling system when available or the court provided portal, in lieu of paper copies otherwise required under the California Rules of Court. In all other cases, the trial court is encouraged, but is not required to, submit the clerk’s transcript and/or the reporter’s transcript(s) in searchable PDF format, either through the TrueFiling system or a court provided portal, in lieu of paper copies otherwise required under the California Rules of Court, and to make electronic versions available to parties willing to accept them in lieu of paper copies. Digital copies of clerk’s transcripts and reporter’s transcripts must comply with the content and form requirements set forth in the California Rules of Court with the exception of those provisions dealing exclusively with requirements for paper.

(e) [Personal Identifiers and Privacy Issues]
To protect personal privacy, parties and their attorneys must not include, or must redact where inclusion is necessary, personal identifiers such as social security numbers, driver’s license numbers, and financial account numbers from all pleadings and other papers filed in the Court’s public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the Court. (California Rules of Court, rule 1.20(b).) If an individual’s social security number is required in a pleading or other paper filed in the public file, only the last four digits of that number shall be used. If financial account numbers are required in a pleading or other paper filed in the public file, only the last four digits of these numbers shall be used. Particularly sensitive confidential information such as medical records and proprietary or trade secret information should be filed only under seal as required by law or authorized pursuant to the California Rules of Court.

The responsibility for excluding or redacting identifiers from all documents filed with the Court rests solely with the parties and their attorneys. (California Rules of Court, rule 1.20(b)(3).) Neither TrueFiling nor the Clerk of the Court has any responsibility to review pleadings or other papers for compliance.

(f) [Filing Deadlines]
Filing documents electronically does not alter any filing deadlines. In order to be timely filed on the day they are due, all electronic transmissions of documents must be completed (i.e., received completely by the Clerk of the Court) prior to midnight. Where a specific time of day is set for filing by Court order or stipulation, the electronic filing shall be completed by that time. Although EFS permits parties to submit documents electronically 24 hours a day, users should be aware that telephone or online assistance may not be available outside of normal Court business hours.

(g) [Completion of Filing]
Electronic transmission of a document through TrueFiling in compliance with the California Rules of Court shall, upon confirmed receipt of the entire document by the Clerk of the Court, constitute filing of the document for all purposes.

(h) [Technical Failure/Motions for Late Filing]
If a filer fails to meet a filing deadline imposed by Court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the Court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.

The Clerk of the Court shall deem the EFS system to be subject to a technical failure whenever the system is unable to accept filings continuously or intermittently over the course of any period of time greater than one hour after 12:00 noon that day. Filings due on the day of a technical failure which were not filed solely due to such technical failure shall be due the next court day. Such delayed filings shall be accompanied by a declaration or affidavit attesting to at least two attempts by the filer to file electronically after 12:00 noon with each attempt at least one hour apart on each day of delay due to such technical failure. The initial point of contact for any practitioner experiencing difficulty filing a document into the EFS system shall be the toll-free number posted on the TrueFiling Web site.

The Court shall not be responsible for malfunction or errors occurring in electronic transmission or receipt of electronically filed documents.

(i) [Manual Filing]
An EFS user may be excused from filing a particular document electronically if (1) it is not available in electronic format; (2) it must therefore be scanned to PDF; and (3) the file size of the scanned document exceeds the limit specified on the EFS Web site. Such a document instead shall be manually filed with the Clerk of Court and served upon the parties in accordance with the statutory requirements and the California Rules of Court applicable to service of paper documents. Parties manually filing a document shall file electronically a manual filing notification setting forth the reason why the document cannot be filed electronically.

(j) [Service]
An attorney’s registration with TrueFiling to participate in EFS constitutes consent to service or delivery of all documents by any other party in a case through the system. (California Rules of Court, rule 8.71.) Orders or other documents generated by the Court will be served only through the EFS or by e-mailed notification. Only self-represented litigants who are not registered EFS users will receive manual service or notification by other means.

(k) [Filing fees]
TrueFiling is a private vendor under contract with the Court. TrueFiling will assess vendor fees for each filing in accordance with the schedule posted on its Web site, as approved by the Court. e-Filing fees will be considered recoverable costs under California Rules of Court, rule 8.278(d)(1)(D). TrueFiling is designated as the Court’s agent for collection of Court imposed fees where required for any filing, and any associated credit card or bank charges or convenience fees (California Rules of Court, rule 8.78; Gov. Code, § 6159).

Should a self-represented party with a fee waiver opt to file documents electronically, that party is exempt from the fees and costs associated with electronic filing. The persons and entities identified in Government Code section 6103 also are exempt from the fees and costs associated with e-Filing.

(l) [Exemptions]
Self-represented parties may, but are not required to register for electronic filing, but must comply with this rule and the requirements of TrueFiling if they elect to register.

If this rule causes undue hardship or significant prejudice to any party, the party shall lodge the number of paper copies required by the California Rules of Court without regard to electronic filing, plus an additional unbound paper copy in lieu of the electronic copy, accompanied by a declaration setting forth facts that support the claim of hardship. Acceptance of the lodged papers for filing will be subject to further order of the Court. When it is not otherwise feasible for a party to convert a document to electronic form by scanning, imaging or other means, the document may be filed in paper form (California Rules of Court, rule 8.73(c)), together with a declaration setting forth the reasons that electronic filing was not feasible.

(m) [Sanctions for Noncompliance]
Failure of counsel to timely register or otherwise comply with EFS filing requirements, unless exempted, shall subject counsel to sanctions as may be imposed by the Court.

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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