Always identify/enumerate augment items
When augmenting the record for items found in the clerk’s transcript, identify each requested document by its title and filing date or, if the filing date is not available, the date it was signed. Minute orders may be requested by date. (See Cal. Rules of Court, rule 8.122(a)(1).) For documentary exhibits admitted into evidence or lodged, specify the exhibit by number or letter. (See Cal. Rules of Court, rule 8.122(a)(3). But see Cal. Rules of Court, rules 8.224, 8.320(e) [outlining the procedure for transmitting exhibits to the Court of Appeal].) Counsel should note in the MTA that the exhibit is a document rather than a physical item. Be sure to explain why you are requesting the item in a motion to augment rather than following the procedure in rule 8.224 for transmitting exhibits to the Court of Appeal after the respondent’s brief is filed. (See Third District’s preference, below.) It is also helpful to include any other information in the record that will assist the Court of Appeal in identifying the item and ruling on the motion to augment.
When augmenting for items found in the reporter’s transcript, specify the date of each proceeding. (See Cal. Rules of Court, rule 8.130(a)(1).) It is also helpful to include the reporter’s name and certification (CRS) number if known, and any other information in the record that will assist the Court of Appeal in identifying the hearing and ruling on the motion to augment. For example, if counsel determines that a hearing occurred because there is a minute order for the hearing in the clerk’s transcript, counsel should also provide a record citation page number reference when identifying the corresponding reporter’s transcript.
Always justify items needed
Whenever moving to augment the record, be sure to explain how the requested materials will be useful on appeal. (See People v. Gaston (1978) 20 Cal.3d 476, 482.)
In the Third District, to add record documents counsel has access to:
- If the documents counsel is seeking add are part of the normal record, including any subsequent trial court order, the preference is to use an omissions letter in the trial court. (CRC 8.155, 8.340.)
- If the documents are exhibits in the possession of the trial court, the preference is a motion to transmit exhibits. (CRC 8.224, 8.320.)
- If the documents are not part of the normal record but are in the possession of the trial court, a motion to augment is preferable (and need not include attachments if not in the party’s possession). (CRC 8.155.)
- If the documents are not part of the normal record and are not in the possession of the trial court but are accessible and were lodged or considered by the trial court, a motion to augment with attached exhibits is preferable. (CRC 8.155.)
- If a motion to augment has already been granted and the trial court has failed to transmit the ordered documents, an omission letter is preferable to a successive motion to augment.
In the Fifth District, to add record documents counsel has access to:
- This court prefers counsel not add the document by way of omission letter if it is not part of the normal record as the superior court likely will not agree to provide it without a formal motion.
- For documents not part of the normal record but are in the possession of the trial court, counsel can do a motion to augment under 8.155. In the motion they can either request this court order an augmented record from the superior court, or they could submit the proposed augmented documents directly with the motion for this court to file. When doing the latter, it is preferable to have the documents submitted separately from the motion and must follow this court’s filing guidelines, including consecutive pagination for submission via TrueFiling. This court does not have a preference for obtaining the augmented record from either the party or the superior court.
- When documents are submitted from counsel, it is preferable to have a file-stamped copy of the document so that it is clear it is the same document that is in possession of the trial court. It is not uncommon for this court to provide the opposing party time to file a response to a motion to augment where counsel provides the documents directly to this court.