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Abandonment = entitle it: “Notice of Abandonment and Request for Dismissal”
Appointed counsel may sign the request to abandon. (Rules of Court, rule 8.316(a).) [Policy change: 10/20/15] The original signature must be retained in counsel’s physical file. (See Rules of Court, rule 8.75.)
This court requires moving papers to “request dismissal.” CCAP’s motion sample meets this requirement.
Consultation with the CCAP buddy is required by all counsel (assist and independent appointments) prior to filing the notice of abandonment and request for dismissal.
Abandonment = electronic signature
Appointed counsel may sign the request to abandon. (Rules of Court, rule 8.316(a).) The original signature should be retained in counsel’s physical file. (See Rules of Court, rule 8.75.)
The Fifth District no longer requires specific declaration language.
Consultation with the CCAP buddy is required by all counsel (assist and independent appointments) prior to filing the notice of abandonment and request for dismissal.
Appointment status listed on brief cover
For appointed cases, the Third asks counsel to include their appointment status in the lower right-hand corner of the brief cover: “By Appointment of the Third District Court of Appeal under the Central California Appellate Program Assisted [or Independent] Case System.”
Appointment status listed on brief cover
The Fifth’s policy is the same.
For appointed cases, the Fifth asks counsel to include their appointment status in the lower right-hand corner of the brief cover: “By Appointment of the Fifth District Court of Appeal under the Central California Appellate Program Assisted [or Independent] Case System.”
Argument headings
The Third District Court of Appeal has held that a distinct argument must be placed under a separate argument heading or subheading to present the point. (Cal. Rules of Court, rule 8.204(a)(1)(B).) The court will find an argument not meeting this requirement is procedurally defaulted due to counsel’s presentation of the contention in a “perfunctory fashion.” A Third District case so holding is Opdyk v. California Horse Racing Board (1994) 34 Cal.App.4th 1826, 1830-1831, fn.4.)
A second waiver result that we see is an argument defaulted because it is not supported by citation to the record or authority. (People v. Dougherty (1981) 138 Cal.App.3d 278, 282-283.) Authority means other than a general allusion to a broad constitutional provision. For example, a contention that an error invokes constitutional concerns must be developed by showing how the error violates the defendant’s constitutional rights, or the argument may be defaulted. (People v. Kelly (1999) 72 Cal.App.4th 842, 847, fn. 3.)
Finally, don’t forget to include a specific citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
Argument headings
The Fifth District’s policy is the same as in the Third District.
Associate counsel, use of
Appointed counsel are expected to render services for appointed cases including meeting all deadlines, reviewing the record, being conversant in the facts and issues, filing satisfactory briefs and pleadings, and making personal appearances. Use of associate counsel, therefore, comes with project, AIDOAC, and court restrictions and requirements.
CCAP specific requirements: (a) Assisted counsel must seek project permission for any use of associate counsel in the case; (b) All counsel must seek the project director’s written permission if counsel wishes to have associate counsel orally argue the case in their stead. Requests should include associate counsel’s background and experience, familiarity with the issue(s) being argued, and a statement of need for having associate counsel step in for oral argument, a critical stage of the case; (c) All communications with project staff should be handled personally by appointed counsel, not an associate; and (d) CCAP examines every category for which associate counsel or law clerk time is claimed, to help determine whether appointed counsel has been sufficiently engaged to fulfill our expectations.
AIDOAC has added its own restrictions: (a) Counsel appointed on an assisted basis may not use associate counsel without extraordinary permission from the project director; and (b) An attorney claiming time spent by associate counsel must declare and itemize that time, identifying the attorney by name and State Bar number. For associate time to be claimed as attorney time (rather than as paralegal time), the associate must be an active member of the California State Bar at the time the services are performed.
Finally, the Third District has specific requirements if the associate is going to sign any pleading or appear at oral argument: (a) First, counsel must first meet both CCAP and AIDOAC/statewide requirements above; (b) A written request to the court should be submitted via CCAP for filing that includes: the name, State Bar number, address and telephone number of associate counsel; a statement that the compensation claim will be filed in the name of appointed counsel and bear counsel’s signature; a statement that a separate claim will not be filed by associate counsel, the signature of appointed counsel and associate counsel, and a proof of service for opposing counsel.
Associate counsel, use of
Use the same project and AIDOAC restrictions and requirements as the Third.
Associate counsel time-logs
The associate counsel hours attributable to claim line items must be completed as one of the steps for submitting a claim using CCAP’s Webclaims portal. Information required will include associate counsel’s name and State Bar number, the date the task was performed, the corresponding claim line item number, a brief description of the task, the associate counsel hours spent on the task, and any comments.
Associate counsel time-logs
The Fifth District’s policy is the same as in the Third District.
Attorney information on filings
The Third District clerks enforce rule 8.204(b)(10)(D) which requires that the attorney’s name, address, telephone number and state bar number must appear on the cover page (or the first page). This applies to all filings. The court’s preference is to have the information all in the upper left hand corner of the first page (except on briefs), because it makes it easier for the court staff and justices to quickly find the information.
Attorney information on filings
The Fifth District has not issued a directive on this item.
Augments versus rule 8.340(b) filings – requesting supplemental record
If the record is incomplete, the Third expects a motion to augment be filed before an EOT is filed. (See appointment order.)
The Third will automatically toll the due date of an opening brief or a respondent’s brief upon receiving notification pursuant to rule 8.340(a) or a letter pursuant to rule 8.340(b), if those due dates are pending. No separate extension of time request is necessary. CAVEATS: When the material to be included in the record is attached to the motion to augment (rule 8.155(a)(2)), the opening brief filing deadline might not be tolled because counsel already possesses the record. In this instance, it is recommended that counsel confirm their deadline with the court clerk. And, if the appellant’s reply brief is currently due, this does not toll the brief due date. The reply brief is not a mandatory brief. Counsel should file a request for extension of time if the reply brief will not be timely filed. The Third will exercise its discretion whether to grant or deny the extension request.
Do not include stay requests in MTA
Motions to augment the record should not include a request to stay the appeal. Requests to stay an appeal are considered urgent and the court processes these requests differently from motions to augment. If counsel is seeking to stay an appeal, the request should be made in a separate motion.
Do not include 8.340(b) items in MTA
Concurrent applications for both MTA and 8.340(b) items, may not be combined into one motion to augment. Instead, the MTA should be filed directly in the Court of Appeal (rule 8.340(c)); the supplemental record request for omission of normal record items should be filed in the superior court (rule 8.340(b)).
Send a 8.340(b) directly to the trial court clerk’s office, not the judge.
Do not file an MTA to obtain the record in a prior case
When a current appeal involves a record from a prior appeal, and appointed counsel would like the record from the prior appeal as part of the record for the present appeal, counsel should file a motion to incorporate by reference, not a motion to augment or a motion for judicial notice. (See Cal. Rules of Court, Rule 8.147(b).) See Record in Prior Appeal, Making it Part of the Record in the Current Appeal below.
Augments versus rule 8.340(b) filings – requesting supplemental record
If the record is incomplete, the Fifth expects a motion to augment be filed before an EOT is filed. Appointed counsel must meet the augment deadline set in the appointment order. If counsel cannot do so, an explanation is required when the augment motion or an initial EOT is filed. Press of business is not an acceptable reason.
The Fifth will automatically toll the due date of an opening brief upon receiving notification pursuant to rule 8.340(a) or a letter pursuant to rule 8.340(b), if those due dates are pending. No separate extension of time request is necessary. CAVEATS: When the material to be included in the record is attached to the motion to augment (rule 8.155(a)(2)), the opening brief filing deadline might not be tolled because counsel already possesses the record. In this instance, it is recommended that counsel confirm their deadline with the court clerk. And, if either the respondent’s brief or appellant’s reply brief is currently due, this does not toll the due date for those briefs – counsel should file a request for extension of time if they will not be able to timely file the brief.
No order is required to accompany an augment request.
See also Record in Prior Appeal, Making it Part of the Record in the Current Appeal below.
Do not include attached exhibits in MTA
When requesting documents be made a part of the record, this court prefers the exhibits be submitted separately from the motion itself. (See topic “Augmentation with exhibits,” below.)
Do not include 8.340(b) items in MTA
Concurrent applications for both MTA and 8.340(b) items, may not be combined into one motion to augment. Instead, the MTA should be filed directly in the Court of Appeal (rule 8.340(c)); the supplemental record request for omission of normal record items should be filed in the superior court (rule 8.340(b)).
Send a 8.340(b) directly to the trial court clerk’s office, not the judge.
Special rule on juvenile cases.
Spotted in a recent Fifth District order on a dependency case, where counsel just happened to find something in the superior court file: “When[ever] counsel has the opportunity to review a juvenile dependency superior court file and discovers missing material which counsel believes should be part of the appellate record, counsel is urged to proceed as follows. If at all possible, counsel should obtain a certified copy of such material and submit it to this court, along with a motion to deem the material part of the appellate record. [See Cal. Rules of Court, rules 8.155(a)(1)(A) and (a)(2).] In this manner, delay in a priority appeal . . . may be avoided in the future.”
Augmentation with exhibits
Rather than a motion to augment with exhibits that were admitted in evidence, refused, or lodged but not copied in the clerk’s transcript, counsel should file a request for transmittal pursuant to Rule 8.224(d). See “Exhibits – request for early transmittal” for guidance on the type of request to be filed and the appropriate court for filing.
Augmentation with exhibits
Do not include attached exhibits in an MTA.
When requesting documents be made a part of the court’s record (such as an augmented record, supplemental brief, corrected brief, amicus curiae brief or any other similar document), or to be judicially noticed, this court prefers the exhibits be submitted separate from the motion itself. This court has no way of separating the documents to become part of the official record or to be judicially noticed. There is a sample motion on the court’s website.
- Submit electronic documents as a separate .pdf file at the same time as the motion, application or request;
- Ensure such documents are formatted in compliance with this court’s Local Rule8(b);
- See Cal. Rules of Court, rule 8.74(a)(5) when submitting documents over 300pages in length.
Augmentation with multiple defendants
Counsel should not file a joinder motion when a co-appellant files an augment motion. Not only will all parties automatically receive copies of a co-appellant’s augmented record, but also they will automatically receive a suspended due date for their brief.
Augmentation with multiple defendants
The Fifth District’s policy is the same as in the Third District.
Briefs–Filing Unredacted and Redacted Briefs
Briefs–Filing Unredacted and Redacted Briefs
Briefs–binding expenses
With the implementation of TrueFiling, no binding expenses will be recommended in appointed cases.
Any paper service copies of a brief or petition that cannot be electronically served (e.g., service for an incarcerated client) should simply be stapled.
Briefs–binding expenses
The Fifth District’s policy is the same as in the Third District.
Captions – What’s in a name?
In the Third District, for all cases, the clerks ask that counsel use only the court-designated caption for any filing (received, stamped or lodged) in their court. All counsel are expected to follow and use the court-designated caption, including the use of initials-only where appropriate for minors and parents.
If appointed counsel have a question about whether the caption received from CCAP is correct or not, it can checked against the court’s online docket (external link) “Parties & Attorneys” entry.
In order to protect the anonymity of juveniles, this Court has now adopted the designation of parties in any juvenile proceeding by using initials only in place of first and last names. Thus, for all dependency and delinquency cases, the parties (and even non-parties) are identified by initials only, including the parent of a minor.
This Court considers the last name for any minor a matter of confidentiality. Both CCAP and the Court regard this remiss as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.
See more below under M for Minor’s Names.
Captions – What’s in a name?
In the Fifth District, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child. This Court considers the last name for any minor a matter of confidentiality. Both CCAP and the Court regard this remiss as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.
However, appointed counsel should always check whether the appointment-order caption received from CCAP is correct by checking it against the court’s online docket (external link) “Parties & Attorneys” entry.
See more below under M for Minor’s Names.
Cert. petitions
Compensation for cert. petition work requires an expansion of appointment and preauthorization from the court for all related time and expenses. Submit your written request and all court copies to CCAP for our input and recommendation to the court.
Cert. petitions
Compensation for cert. petition work requires an expansion of appointment and preauthorization from the court for all related time and expenses. Submit your written request and copies directly to the court.
Change of panel information/address
For this court, Truefile a single change of address notice that lists all active case numbers; pick one open case. The clerk will replicate it for each listed case.
Note for panel attorneys:
Use of the JCC/Project Information Sheet is also mandatory for any change of address. That sheet is available HERE A copy of the form (but not the W-9) must be submitted to every appellate project of which you are a panel member. Please use the following email address for CCAP: eservice@capcentral.org.
Change of panel information/address
Create one change of address notice listing all active case numbers on one notice, but Truefile it in each individual active case.
Citations in the body of the brief
The Third District justices prefer citations in the body of the brief, not in the footnotes. The Third District clerk will review the brief for appropriate citations to the record. If there are not sufficient citations in the body, the brief will be returned to counsel prior to filing for addition of appropriate citations.
Citations in the body of the brief
The Fifth District clerk will send a letter to counsel advising that the justices prefer case citations in the body of the brief, not in footnotes.
Confidential information, request to redact record
If counsel discovers confidential information in the reporter’s or clerk’s transcripts that should have been redacted from the record or sealed (Cal. Rules of Court, rule 8.45(d)(1)), counsel should file a request in the Court of Appeal to redact the confidential information from the record. The request may be made in a letter with a formal proof of service. Counsel should not redact the confidential information from the record himself or herself.
Confidential information, request to redact record
The Fifth District’s policy is the same as in the Third District.
Consolidating appeals
A motion to consolidate appeals does not toll the AOB due date for either court.
Consolidating appeals
The Fifth District’s policy is the same as in the Third District.
Correcting the record
Motions to correct the record must be filed in the Court of Appeal, not the trial court. (See Cal. Rules of Court, rules 8.340(c), 8.155(c).) The Court of Appeal may order the correction or certification of any part of the record, and may order the superior court to settle disputes about omissions or errors in the record. (Cal. Rules of Court, rules 8.155(c).)
Correcting the record
The Fifth District’s policy is the same as in the Third District.
Dependency statements in briefs
Either separate or combined statements may be used in dependency briefing, as long as the statements are limited to the facts pertinent to the appeal. (Policy updated 4/20/15)
Dependency statements in briefs
This court prefers the use of combined statements in dependency briefs. (Policy updated 4/20/15)
E-Filing/TrueFiling
The Third DCA has implemented mandatory electronic e-filing via TrueFiling for all documents. Please read Local Rule 5 (external link to PDF), which addresses e-filing in the Third DCA. (Non-attorney self-represented litigants may use a paper format. See Local Rule 5 (external link to PDF).)
More information about e-filing via TrueFiling in the Courts of Appeal and additional resources, including training videos, are available on the California Courts website Truefiling page (external link).
E-Filing/TrueFiling
The Fifth DCA has implemented mandatory electronic e-filing via TrueFiling for all documents. Please read Local Rule 8 (external link), which addresses e-filing in the Fifth DCA. The court has also issued a PDF with e-Filing Guidelines for submitting documents in this court, which are available on the court’s website (external link).
More information about e-filing via TrueFiling in the Courts of Appeal and additional resources, including training videos, are available on the California Courts website Truefiling page (external link).
EOT format and filing requirements
Both courts strongly prefer EOT requests filed on the most current Judicial Council forms. Editable versions of the following forms are available on our Motion Samples Page under “E” — CR-126 for criminal cases, JV-816 for juvenile justice/delinquency cases, and JV-817 for dependency cases. The court will not accept an EOT for extending time to make a motion to augment; a late augment motion should include the reasons for the late filing (other than press-of-business reasons). Counsel must comply with rule 8.204(b)(10)(D) when filing this and other motions in the Third. If additional pages need to be attached, use 8.5″ x 11″, unnumbered lines, with the case caption at the top.
Signature line for the court: If not using the form, include “It is so ordered_____” at the bottom of a full page or at least a half-full page (i.e., the court will not sign a blank page that could be removed and separated from the motion). Do not add any additional unique wording to the “It is so ordered” line (eg., “It is so ordered until ___” is not helpful).
Important: Neither court allows rule 8.360(c)(5) [formerly known as 17(a) time] as a “grace period” for filing the opening brief. If counsel cannot file the brief by the court’s deadline, an extension of time (EOT) should be filed. See “Don’t Use 8.360(c)(5) Time!” discussion in CCAP article: Extensions of Time. This is also true for dependency cases. (Rule 8.416(g).)
Tip for both courts:
- Don’t select a weekend, court-furlough or holiday date as a new due date in your extension of time request! Always check the calendar first. See Court Holiday Closure page.
- If appropriate for the case, consider a request for more than 30 days, but the next EOT will be closely scrutinized!
- The standards for time extensions are set forth in Rules of Court, rule 8.63. Specific reference to the factors in the rule is recommended. The request must be supported by a fairly detailed factual showing and should relate counsel’s need for more time to the factors of the current case in which the request is being made. In other words, counsel should provide an explanation of what work has been done on this case and how much remains to be done. If counsel does not discuss work completed specific to the case, then there is a high likelihood that the court will issue a “no further time” designation.
See CCAP’s article on Extensions of Time for more tips.
EOT format and filing requirements
Both courts strongly prefer EOT requests filed on the most current Judicial Council forms. Editable versions of the following forms are available on our Motion Samples Page under “E” — CR-126 for criminal cases, JV-816 for juvenile justice/delinquency cases, and JV-817 for dependency cases.
The Fifth’s appointment order often states that any motion to augment the appellate record is to be filed within 30 days from the date of that order and “thereafter, motions to augment may not be granted without a showing of good cause for the delay.” Appointed counsel are expected to know this court’s procedure and provide an explanation for why the EOT request precedes the augmentation request. “Press of business” is not sufficient good cause. (See below.)
Important: Neither court allows rule 8.360(c)(5) [formerly known as 17(a) time] as a “grace period” for filing the opening brief. If counsel cannot file the brief by the court’s deadline, an extension of time (EOT) should be filed. See “Don’t Use 8.360(c)(5) Time!” discussion in CCAP article: Extensions of Time. This is also true for dependency cases. (Rule 8.416(g).)
For both courts, “press of business” reasons (such as other case work), is not sufficient for an extension request. State what work has been accomplished on this case to date and ask for a full 30-day allotment (don’t short yourself). Finally, if counsel states they will file the brief in the next 30 days, either meet that promise, or be prepared to explain unusual circumstances in the next EOT.
See CCAP’s article on Extensions of Time for more tips.
Errata letter or Motion to correct a brief?
An errata letter cannot be used with electronically filed briefs. If there are substantive or substantial changes to a brief, however, counsel may file a motion to file a corrected brief. Counsel may Truefile the substitute brief with the motion or await the court’s order to grant or deny the motion.
Use the same service requirements set forth in the Rules of Court for service briefs.
Errata letter or Motion to correct a brief?
Now that all briefs are electronically filed, the court is no longer able to add corrections to a brief, minor or otherwise. As a result, if counsel needs to submit an errata letter, counsel must also submit a corrected copy of the brief at the same time as the letter. The corrected brief should not be combined in the same document as the letter. The letter and the brief should instead be submitted as separate documents, but in the same TrueFiling “bundle.” The same is true if counsel is filing a motion to file a corrected brief. A corrected version of the brief should also be submitted at the same time as the motion, but as a separate document.
Use the same service requirements set forth in the Rules of Court for service briefs.
Exhibits – e-filed documents
The court requires all electronic filers to comply with rule 8.74, California Rules of Court, which governs formatting for electronic documents. There are additional guidelines for submitting exhibits to petitions. The PDF guidelines are provided to assist you in preparing electronic documents but do not supplant the requirements of the California Rules of Court.
Exhibits – e-filed documents
This court has issued PDF guidelines for electronic submission of exhibits (external link) on the court’s website.
Exhibits – transmit to Court of Appeal
Rather than a motion to augment the record with exhibits that were admitted in evidence, refused, or lodged but not copied in the clerk’s transcript, counsel should file a request for transmittal of exhibits. The timing of the request will determine the type of filing and the appropriate court in which the filing should be made.
- Pre-AOB (pursuant to Rule 8.224(d)): Early transmittal request to the Court of Appeal
- Within 10 days of filing of respondent’s brief (Rule 8.224(a)): Transmittal notice to the superior court
- Beyond 10 days of filing of respondent’s brief (Rule 8.224(c)): Late transmittal request to the Court of Appeal
Counsel may also file a combined motion to augment and request for early transmittal of exhibits. Please review the subsequent order carefully to determine next steps for viewing the exhibits.
See “Exhibits – viewing after transmittal” for next steps after the Court of Appeal has received and lodged the requested exhibits.
Exhibits – transmit to Court of Appeal
This court would prefer a motion to augment the record to review exhibits over a motion to transmit as it would provide all parties with the exhibits and does not require the court to send the originals to the court of appeal. However, if the exhibit is one that cannot be transmitted to all parties, then a request to transmit would be preferred. A motion to transmit an exhibit to the appellate court should be filed in the Court of Appeal.
Exhibits – viewing after transmittal
A motion to transmit exhibits to the Third must be filed with the trial court if the request is made within 10 days of the filing of respondent’s brief. File a separate motion with the Third to transmit the exhibits to another Court of Appeal for convenient viewing by counsel.
After the Court of Appeal has lodged non-confidential exhibits, counsel may either file an informal request to view the material or call the clerk’s office to request that the exhibits be delivered electronically to counsel. The clerk’s office will scan the documents and provide a hyperlink to access an electronic version of the exhibits. The hyperlink will expire after 7 days.
For confidential material, counsel must file a formal motion to view sealed/confidential materials.
Exhibits – viewing after transmittal
Because this court prefers a motion to augment, the exhibits will be provided to counsel by the trial court if the Court of Appeal grants the motion to augment.
Expansion requests
In both the Third and Fifth District Courts of Appeal, appointed counsel must move to expand the appointment to seek compensation for all writ petition work, including habeas corpus, mandamus, and certiorari, as well as other work outside of the scope of the appointment, such as an appearance and motion work in the trial court with limited exceptions. Simply stated, you will not be paid for work done outside of direct appeal without advance written approval from the courts in these two districts. This is one of the biggest differences between our courts and other courts/projects and may lead to some confusion.
Step1: Read and understand the court’s policies & the limited role of the project: expanding your appointment
Step 2: Read and understand when you need to expand and what elements to include in your request: preauthorization procedures & steps
Where to send it: Submit your draft request to CCAP first for project for review, possible input, and a ultimately a confidential administrative recommendation to the court. It is advisable to discuss your expansion request with the CCAP staff attorney prior to serving it on your client. CCAP may have some additional recommendations for including in your request.
Proof of Service reminder: When filing ready, serve a copy of your request only on your client and CCAP. An application to expand appointment is a compensation matter and does not require service on the Attorney General.
Ready to submit? Include an executed proof of service for this court and send your filing-ready request for expansion to CCAP (i.e., proofread, bookmarked and paginated). CCAP will submit your request along with our confidential administrative recommendation to the court. The court will issue a ruling on your request.
IMPORTANT: Carefully read the expansion order! If granted, it is your responsibility to understand the limits of the issued expansion order. For example, the court may ONLY order time to assist your client to file an in pro. per. petition; or, it may limit the maximum amount of TIME that can be submitted for compensation for the petition; or, it may not include permission for subsequent work such as a trial court appearance, drafting a traverse/reply, etc. (These might require additional expansion.) It is also worth noting that work performed outside of the scope of the appointment is unlikely to be covered by panel/project malpractice insurance. If you need clarification as to what is or is not included, ask first!
Expansion requests
The Fifth District’s expansion requirement policy is the same as the Third District.
Frivolous issues
The Third District’s frivolous issue policy was developed following discussions among the Third District Court of Appeal, CCAP and CADC representatives. The compensation process applies only to opinions that specifically designate an argument as “frivolous” – it does not apply if the opinion uses other words such as “meritless,” “waived,” “defaulted,” etc. It is recommended that CCAP panel attorneys read the Third’s Frivolous Issue Policy page to understand this unique policy.
Frivolous issues
The Fifth District has not issued a directive on this item.
Habeas
Compensation for habeas and all other extraordinary writ work (beyond cursory inquiries with the client and/or trial attorney) requires an expansion of appointment and preauthorization from the court for all related expenses.
Submit your written request and copies to CCAP for project input and recommendation to the court.
Habeas
The Fifth District’s policy is the same as the Third District.
Joinder in briefing
A joinder notice is required to join in a co-appellant’s argument. The notice should cite to rule 8.200(a)(5), direct the court’s attention to how the argument fits appellant’s own case, cite any additional supporting record, and include any additional persuasive argument and authorities.
CCAP Tip: If your appellant’s brief has already been filed and you seek to join a later filed co-appellant’s argument, the rule 8.200(a)(5) notice can still be filed but the clerk will treat it as a “late” application to join. The application will be submitted to the court for a discretionary ruling.
Joinder in briefing
The Fifth District’s policy is the same as in the Third District.
Judicial notice
It is recommended that you obtain a ruling on this motion before filing the opening brief, rather than filing these simultaneously.
Also, it is not necessary to augment the record with judicially noticed materials. Once the court grants the motion, the materials become part of the appellate record.
When you want a record from the prior appeal as part of the record for the present appeal, rather than a “judicial notice” or “motion to augment,” instead try a request for “incorporation by reference.” (See Rule 8.147(b).)
In the Third District, counsel does not need to include a proposed order as this court issues its own order.
Judicial notice
It is recommended that you obtain a ruling on this motion before filing the opening brief, rather than filing these simultaneously.
Juror information – unredacted record
When counsel discovers unredacted personal juror-identity information in the record, counsel should notify the court clerk by letter (with service copies) immediately.
This requirement applies to information about trial jurors and alternates who were sworn to hear the case. Identifying information pertaining to potential jurors who were not sworn need not be redacted from the record. (See Rule 8.332(b) and (c).)
Juror information – unredacted record
The Fifth’s policy is the same.
The Fifth District issued a formal policy concerning the redaction of juror information in record in February 2003. The policy states that appointed counsel must notify the Court of Appeal immediately upon counsel’s discovery of the presence in the record of any unredacted personal juror identifying information. The court will then issue a corrective order, depending on the amount of redaction needed and whether the court has completed its review of the record.
LEGAL MAIL: THIS IS A CDCR MATTER, NOT A COURT POLICY. SEE “LEGAL MAIL PITFALLS”
Letter briefs
In the Third District, letter briefs are not acceptable in place of any brief unless the court has requested supplemental briefing and the order specifically permits it to be in letter format.
Letter briefs
Counsel should request permission from the court before filing a letter brief or informal brief. (See Cal. Rules of Court, rule 8.204(e) [noncomplying briefs].)
Mandate petition
Compensation for a writ of mandate and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court for all related time and expenses. Submit your written request to CCAP for our input and recommendation to the court. (See Expansion requests procedures, above.)
Mandate petition
The Fifth District’s policy is the same as the Third District.
The Fifth District also requires that all petitions, other than habeas, be submitted with a completed coversheet called, “Appellate Court Writ Petition Information Sheet.”
Download the Appellate Court Writ Petition Information Sheet (PDF)
Marsden, raising issue in AOB
California Rules of Court, rule 8.47(b) addresses the record procedures when a People v. Marsden (1970) 2 Cal.3d 118, issue is raised on appeal (these procedures also apply when raising an issue related to other types of in-camera hearings where the defendant was present but the People were excluded in order to prevent disclosure of information about defense strategy or other information to which the prosecution was not allowed access at the time of the hearing).
If the appellant files a brief presenting a Marsden issue, the People may serve and file an application requesting a copy of the reporter’s transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing. (Cal. Rules of Court, rule 8.47(b)(2)(B).) The appellant has 10 days to serve and file opposition to this application on the basis that the transcript or documents contain confidential material not relevant to the issues raised by the defendant in the reviewing court. (Cal. Rules of Court, rule 8.47(b)(2)(C).) If the appellant does not file an opposition to the application within the 10-day period, the reviewing court clerk must send the People a copy of the reporter’s transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing. (Cal. Rules of Court, rule 8.47(b)(2)(D).)
In the Third District, counsel has the option of alerting the Court in the opening brief that he or she does not object to the Court releasing the Marsden transcript to the Attorney General. In the opening brief, the attorney may include a section entitled “Statement of Consent to Release Marsden Transcript” after the “Statement of Appealability” section. In this section, the attorney may state that a Marsden issue is being raised in the opening brief and that the appellant consents to releasing the Marsden transcript to the Attorney General, citing to California Rules of Court, rule 8.47(b)(2). Alerting the Court in the opening brief that there is no objection will allow the court to release the Marsden transcript to the Attorney General right after it is requested without waiting an additional 10 days to see if appellant objects. This procedure is completely optional and should only be used if counsel has no objection to the Attorney General receiving the entire Marsden transcript.
If a panel attorney raises a Marsden issue and does object to the Attorney General receiving the entire transcript, the attorney may follow the procedure in rule 8.47(b)(2)(c) and file an opposition to the Attorney General’s application requesting a copy of the transcript.
Marsden, raising issue in AOB
Counsel raising a People v. Marsden (1970) 2 Cal.3d 118, issue in the Fifth District should follow the procedures for Marsden transcripts outlined in rule 8.47(b). The optional procedure allowed in the Third District (alerting the court in the opening brief that there is no objection to releasing the transcripts) does not apply.
Minor’s name
In the Third District, for all cases, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child – in briefs and motions, according to Rules of Court, rule 8.401(a)(1) [use of full first name + initlal of last name unless the first name is unusual or would otherwise defeat anonymity]. The clerk will file the document with either this caption, or with a double-initial name caption.
This court considers the last name for any minor a matter of confidentiality per rule 8.401. Both CCAP and the court regard using the last name as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.
The Third District will continue to use the designation of parties in any juvenile proceeding by “double suppression” (using initials only in place of first and last names). Thus, for all dependency and delinquency cases, the parties are identified by initials only in court generated captions, including the parent of a minor. The court’s use of double suppression is a result of the court’s case management system.
CCAP TIP: Because this court generates its own appointment order, the caption will default to initials only. Counsel can go to the Social Security “Popular Baby Names” web site (external link) to determine if the name is among the 1000 most popular birth names during the last nine years; if so, they may use the first name in full pursuant to rule 8.401(a)(1), notwithstanding how it is reflected in the appointment order (unless other unusual circumstances apply).
Minor’s name
In the Fifth District, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child – in briefs and motions.
This court considers the last name for any minor a matter of confidentiality per rule 8.401. Both CCAP and the court regard using the last name as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.
For grandparents’ names in dependency cases, use the first name and last initial (Mary and Joe A.) or refer to them as “grandparents,” whichever is least confusing in context.
This court will identify the parties in juvenile dependency and delinquency cases by using their first name and last initial in both published and unpublished opinions, unless circumstances (e.g. a unique first name) would indicate that this would compromise the aim of confidentiality. For publicly-available docket (external link) information in these cases, however, the court will continue to identify the parites by using initials only.
Because CCAP generates the appointment order for the Fifth District (if the court agrees to the selection of counsel), the order will reflect CCAP’s case management system default to the use of first name + last initial. It is counsel’s responsibility to determine if the minor’s name is so unusual that a double suppression (initials only) is warranted for filings. (See Cal. Rules of Court, rule 8.401(a)(1).)
CCAP TIP: Counsel can go to the Social Security “Popular Baby Names” web site (external link) to determine if the name is among the 1000 most popular birth names during the last nine years; if not, they should instead use an initial for both the first and last name, notwithstanding how it is reflected in the appointment order.
Nonappealable case
For nonappealable order or judgments in criminal and delinquency cases, the Third District will not consider a motion that asks the Court of Appeal to determine whether the case is appealable. Instead, when counsel has concluded that the matter appealed from is not appealable, doublecheck with the CCAP buddy, then submit a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. For the Statement of Appealability, counsel should state simply, “There may be a question as to the appealability of the matter being appealed.”
The Court will determine whether the case is properly before the Court when it conducts its review of the briefing in the ordinary course of the appeal. If the Court determines that it is, the Court will conduct a normal Wende review and request supplemental briefing on any issues that the Court believes should be briefed.
A Wende brief requires that the statement of the case and statement of the facts be adequate to assist the reviewing court during its Wende review. It is not proper to present an argument in the Statement of the Case, but it is proper to identify the proceedings that occurred in the court below that may give rise to an issue. CCAP recommends that counsel craft the Statement of the Case in a way that draws the Court’s attention to potential issues in the event that the Court finds that the appeal is properly before the Court.
Nonappealable case
If counsel concludes that the case is from a nonappealable order or judgment, doublecheck with the CCAP buddy.
The Fifth District’s policy is that counsel should ask the Fifth District Court of Appeal for instruction on whether or not to proceed with the briefing. The Fifth is not opposed to appointed counsel taking a positive position on the appealability question with a brief citation to applicable case law or statute. The Court will issue an order so counsel knows how the Court wishes counsel to proceed.
See a sample: Application for Order Concerning Appealability (PDF) (for the Fifth)
Oral argument – about those questionnaires from the clerk/court
The Third District sends only one questionnaire to the parties regarding waiving/scheduling oral argument.
Include a proof of service when returning it to the court.
Do not include conditional waiver language.
Special Notice for Dependency Cases Involving the Termination of Parental Rights
In a dependency case involving the termination of parental rights, the Third District will not send an oral argument questionnaire. If counsel wishes to request oral argument in an appeal from the termination of parental rights, counsel must serve and file any request for oral argument no later than 15 days after the appellant’s reply brief is filed or due to be filed. Failure to file a timely request will be deemed a waiver. (Cal. Rules of Court, rule 8.416(h)(1).)
Oral argument – about those questionnaires from the clerk/court
The Fifth District clerk sends a questionnaire with the month of oral argument listed. If you request oral argument, you will be notified promptly of the specific date and time of appearance in compliance with Cal. Rules of Court, rule 8.252(b).
PANEL REMINDER: FOR ALL APPOINTMENTS (ASSIST AND INDEPENDENT), DISCUSS THE CASE WITH YOUR CCAP BUDDY BEFORE DECIDING WHETHER TO SEEK OR WAIVE ORAL ARGUMENT, EVEN TELEPHONIC APPEARANCES.
Oral argument – citing new authority
Before oral argument counsel should furnish the clerk with a list of citations (original + 4 copies) of any decision rendered after preparation of the briefs which will be cited by the name of the attorney submitting the citations. It may not include arguments or explanations. (See Cal. Rules of Court, rule 8.254.)
Formal proof of service is required unless presented at the time of oral argument. If presented at oral argument, please hand them to the courtroom clerk together with your business card.
Oral argument – citing new authority
The Fifth District follows Cal. Rules of Court, rule 8.254, which governs when a party wishes to file new authorities with the court.
Rule 8.254 provides that the authority must be “new” as defined by the rule, and the party should provide “only a citation to the new authority and identify, by citation to a page or pages in a brief on file, the issue on appeal to which the new authority is relevant. No argument or other discussion of the authority is permitted in the letter.”
The list should be TrueFiled separately from your oral argument questionnaire response form if being submitted at same time.
Oral argument – conditional waiver
The Third District does NOT accept conditional waivers for oral argument.
Requests that include a conditional waiver will be rejected via TrueFiling and returned to counsel to make an election to either request argument, or waive.
Oral argument – conditional waiver
The Fifth District’s form includes an election for conditional waivers. Counsel must also now choose whether to appear in person or telephonically if the other party does not waive.
Oral argument – electronic devices at
Laptop computers and electronic tablets may be used in the court room but must be silenced and placed in “airplane mode” at all times. Such devices may be used by counsel or self-represented litigants only as an aid in presenting oral argument and cannot be used to display demonstrative evidence to the court or for any other purpose. Cellular telephones and other electronic devices are not permitted in the court room. No audio or video recording or photography is permitted in the court room except in compliance with California Rules of Court, Rule 1.150. Failure to comply with this policy will result in the violator being removed from the court room.
Oral argument – electronic devices at
Effective January 2014, counsel may bring a laptop or tablet device for use during oral argument. Such 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 (see Cal. Rules of Court, rule 1.150). The Court no longer requires prior notification or an Application when bringing e-devices to oral argument.
Oral argument – in person, telephonic, or video
While the court prefers oral argument be conducted in person, with recent technology updates the court now has the capability to conduct oral argument in the courtroom through video conferencing or a combination of in person and video appearances. With limited exception, the court will no longer hold oral argument by telephone. Request for telephonic oral argument will be treated as a request for remote appearance by video conference.
A remote hearing is a court proceeding, and it is the expectation that all those appearing before the court dress in professionally appropriate attire. Additionally, participants are advised to be conscious of their background and are further encouraged to have an appropriate background or to use an appropriate virtual background.
It is counsel’s responsibility to ensure that they have stable equipment, including stable internet, audio, and video capabilities. Should counsel have a technical difficulty during a video argument that is not attributable to the court, the court will make an effort to postpone the argument to later in the same day. If upon postponement technical problems persist, oral argument will proceed and non-appearance at that time will be deemed waived, regardless of cause. The case will be submitted for decision upon completion of oral argument with those present.
Instructions for remote appearances may be viewed in the court’s Zoom Instructions for Participants (external link PDF).
Oral argument – in person, telephonic, or video
The court currently allows counsel and/or parties in pro per to appear remotely for oral argument. Remote appearances can either be made telephonically or by video. The supported platform for both telephonic and video appearances is Zoom. Individuals who are incarcerated may use CourtCall.
When appearing remotely, it is important that you speak directly into your phone or microphone. Do not use the speaker feature on your phone. You should also choose a quiet location with minimal outside noise to ensure that the justices can hear your argument. If you are using a phone for your appearance, it is important that you pause occasionally during your argument to allow the justices to ask questions, as phones do not always allow the speaker to hear if someone else is trying to speak at the same time.
Oral argument – unavailability
If counsel anticipates that he or she will be unavailable for an oral argument in the Third District, counsel should wait until the court has set an oral argument date before notifying the court regarding counsel’s unavailability. Once a date has been set, counsel may file a formal request for a continuance if he or she will be unavailable on the scheduled date. Do NOT file a notice of unavailability ahead of time.
Oral argument – unavailability
If counsel anticipates that he or she will be unavailable for an oral argument in the Fifth District, the court prefers counsel to include the dates that he or she will be unavailable on the Fifth’s oral argument response form. Counsel should wait until the court sends the oral argument notice that specifies which month the argument would be scheduled before notifying the court about counsel’s unavailability. Please note that the court may not be able to accommodate counsel’s scheduling conflicts when preparing the oral argument calendar.
Opinion, service of
The Third District does not send appellant a copy of the opinion. Appointed counsel should promptly send the client a copy unless another arrangement has been made.
Opinion, service of
The Fifth District’s policy is the same as in the Third District.
Oversized briefs
The Third District will closely scrutinize a request to file an oversized brief for good cause. (See e.g. In re S.C. (2006) 138 Cal.App.4th 396.) [See CCAP’s sample motion (PDF) for suggestions in drafting your request.] The request can be filed simultaneously with the brief.
The court’s practice is to enter a grant on the docket but not to issue a separate written order. In most cases, the mere fact that the brief is in fact “filed” would be confirmation that the motion was granted. Check the court’s online docket (external link) for confirmation.
Oversized briefs
The Fifth District’s policy is to closely scrutinize a request to file an oversized brief for good cause. [See CCAP’s sample motion (PDF) for suggestions in drafting your request.]
The court expects applications to file briefs in excess of 25,500 words to be filed only in unusual cases. Counsel should take care to specify everything in their request to establish that a longer brief is really necessary.
Petition for rehearing
In the Third District, an appellant can file a petition for rehearing in pro per if the brief was filed pursuant to People v. Wende or People v. Delgadillo, and appellant filed a supplemental brief. Otherwise, the court will not accept a petition for rehearing submitted by an appellant in pro per where appointed counsel is still counsel of record. Therefore, it is important that appointed counsel protect the client’s right to petition for review by filing for rehearing if the opinion misstates the facts or fails to address an issue (rule 8.500(c)(2)). A petition for review in the California Supreme Court can then be filed by the client in pro per.
Petition for rehearing
In the Fifth District, an appellant can file a petition for rehearing in pro per if the brief was filed pursuant to People v. Wende or People v. Delgadillo, and appellant filed a response to the brief. Otherwise, the court will not accept a petition for rehearing submitted by an appellant in pro per where appointed counsel is still counsel of record. Therefore, it is important that appointed counsel protect the client’s right to petition for review by filing for rehearing if the opinion misstates the facts or fails to address an issue (rule 8.500(c)(2)). A petition for review in the California Supreme Court can then be filed by the client in pro per.
READ HOW TO DEMYSTIFY THE PETITION FOR REHEARING
Phoenix H. dependency case filing
Pursuant to the dictates of Phoenix H., if no arguable issue can be discerned, counsel should not file a letter brief nor move to substitute appellant to proceed in pro per. Rather, counsel should file a “Wende-type” brief [a “Phoenix H. brief”] which shall at a minimum include an abbreviated recitation of the relevant facts and procedure and a declaration establishing that counsel has advised appellant that counsel has reviewed the entire record, served a copy of the brief on appellant, and informed appellant of appellant’s right to file, within 30 days of the filing of the “Phoenix H. brief,” a motion to file a supplemental brief supported by a showing of good cause that an arguable issue does exist.
A citation to the Phoenix H. case should be listed on the brief cover: (In re Phoenix H. (2009) 47 Cal.4th 835.)
“Brief” is as defined in the Rules of Court, which includes a brief cover, tables, a statement of appealability, statement of case/fact (as discussed above), an “argument” portion, a word count, and a proof of service. “Brief” does not mean letter brief.
In any case where appellant already has been permitted to proceed in pro per, the court will proceed to dispose of the appeal on the merits if an opening brief is filed by appellant.
For your convenience, CCAP has drafted a sample Phoenix H. brief that meets the Third District’s procedures, including all advisory elements. Counsel may adopt and/or modify the sample as deemed necessary. Other related samples can also be found on the Dependency Client Samples page.
Phoenix H. dependency case filing
For In re Phoenix H. (2009) 47 Cal.4th 835 (no-issue dependency cases), court-appointed counsel may submit the Phoenix H. brief in letter format; compliance with California Rules of Court, rule 8.360 (a) is not mandatory with this court when court-appointed counsel find no arguable issue to be pursued on appeal. (Compare to Third District’s policy. Be sure you know the accepted procedure for the different Courts of Appeal before you file.)
Once a Phoenix H. brief is filed, it is the appellant’s burden to personally make a good cause showing that an arguable issue does exist. Court-appointed counsel are urged to so inform their appellant-clients of this requirement. Upon the filing of a Phoenix H. brief, the court will extend 30-days leave for appellant to personally file, with the court, a letter stating a good cause showing that an arguable issue does exist. No formal motion or other pleading will be required of the appellant, except that appellant must attach a proof of service that includes the superior court clerk, trial counsel for the child(ren), appellant’s counsel, and counsel for respondent. If the appellant does not file such a letter within the time permitted or otherwise does not make a good cause showing that an arguable issue does exist, the appeal will be dismissed as abandoned.
For your convenience, CCAP has drafted Phoenix H. samples that reflect the Fifth District’s procedures, including all advisory elements. Counsel may adopt and/or modify the samples as deemed necessary. All samples can be found on the Dependency Client Samples page.
Post-remittitur follow-up
This court does not provide trial counsel or the client a copy of the opinion. As a practical tip, appointed counsel should notify trial counsel that the case will require further court appearances and resolution of issues in the trial court.
Post-remittitur follow-up
The Fifth District’s policy is the same as in the Third District.
Preauthorization for extraordinary expenses other than translators or travel
The procedural policy for this court is the same as that for their preauthorization for travel: send the request and all copies first to CCAP for our input and recommendation to the court. (See Travel)
Preauthorization for extraordinary expenses other than translators or travel
The Fifth District’s policy is the same as the Third District.
Probation Report, Disclosing Confidential / Personal Information
Read literally, under California Rules of Court, rules 8.45 and 8.47, counsel must move to file briefs and other documents that refer to information in probation reports under seal. To address this issue, the Third District issued Misc. Order 2013-002: “Absent leave of court, parties shall not submit for filing an unredacted brief, application, petition, memorandum, or other document that contains “personal information” derived from a probation report. (Pen. Code § 1203.5; People v. Connor (2004) 115 Cal.App.4th 669; Cal. Rules of Court, rules 8.45, 8.47 (effective January 1, 2014).)”
When it is necessary for counsel to refer to personal information in appellant’s confidential probation report to support the argument(s) on appeal, counsel must file a motion to request permission to file an unredacted brief under seal along with a redacted brief for the public. See Seal, Requesting Permission to File Documents Under.
Probation Report, Disclosing Confidential / Personal Information
Regarding probation reports, the Fifth District has conveyed, “it is the court’s experience that counsel in the Attorney General’s Office (AG’s Office) and associated with the Central California Appellate Program (CCAP) carefully avoid discussion of personal information, which might be confidential about an appellant, witness(es), and victim(s). Accordingly, counsel in the AG’s Office and those associated with CCAP may file briefs that refer to probation report material, without motioning the court to file such briefs under seal.”
When it is necessary for counsel to refer to personal information in appellant’s confidential probation report to support the argument(s) on appeal, counsel must file a motion to request permission to file an unredacted brief under seal along with a redacted brief for the public See Seal, Requesting Permission to File Documents Under.
Proof of Service reminder
If you submit anything for filing — whether it is a motion, a brief, or even a court response form (such as the oral argument response form — you should always include a formal Proof of Service with that filing. A cc: list is not sufficient to meet this requirement.
Proof of Service reminder
The policy for this court is the same.
Pro Per filings
Subject to limited exceptions, the Third District court will not accept pro per filings submitted by an appellant where appointed counsel is still counsel of record, including those submitted through counsel. (See exceptions listed below.) For example, do not forward a client’s motion/issues to the court; do not request filing of a supplemental pro per brief; do not file a pro per petition for rehearing.
The Third District will accept a pro per petition for rehearing if counsel filed a brief pursuant to People v. Wende or People v. Delgadillo, and appellant filed a supplemental brief (see Petition for Rehearing above). The court will also accept pro per Marsden motions.
Pro Per filings
The Fifth District’s procedural policy on pro per filings varies. See Petition for Rehearing above for the Fifth District’s policy on pro per petitions for rehearing. Call the court clerk concerning other pro per filings.
Record in Prior Appeal, Making it Part of the Record in the Current Appeal
When a current appeal involves a record from a prior appeal, and appointed counsel would like the record from the prior appeal as part of the record for the present appeal, counsel should file a motion to incorporate the record in the prior appeal by reference, not a motion to augment or a motion for judicial notice. (See Cal. Rules of Court, Rule 8.147(b).) If the motion is granted, the Court of Appeal will contact counsel to find out what portions of the record counsel needs for the appeal and will send copies to counsel.
Record in Prior Appeal, Making it Part of the Record in the Current Appeal
When a current appeal involves a record from a prior case, and appointed counsel would like the record from the prior case as part of the record for the present appeal, counsel should file a motion to augment or a motion for judicial notice.
If counsel files a motion for judicial notice and needs a copy of the record from the prior case, counsel should include the request for a copy of the record (specifying which parts are needed) in the motion for judicial notice. If the Fifth District grants the motion, the court will typically include information about providing the record to counsel in the court’s order granting the motion. Including the request for a copy of the record in the motion for judicial notice will greatly assist the court in efficiently processing the request.
Seal, Requesting Permission to File Documents Under
All filers must comply with the California Rules of Court pertaining to sealed and confidential material, with the exception of those provisions pertaining exclusively with requirements for paper or as otherwise specified in the court’s local electronic filing rule. (Ct. App., Third Dist., Local Rules, rule 5(i); see also Cal. Rules of Court, rules 8.45-8.47.) If it is necessary to disclose material contained in a sealed or confidential record in a filing (including any application, brief, petition, or memorandum), counsel should file any required motion or application to file under seal, the unredacted copy of the filing, and the public redacted copy of the filing via TrueFiling.
See also Probation Report, Disclosing Confidential / Personal Information.
Seal, Requesting Permission to File Documents Under
All filers must comply with California Rules of Court, rules 8.46 and 8.47 pertaining to sealed and confidential material. (Ct. App., Fifth Dist., Local Rules, rule 8(f); see also Cal. Rules of Court, rules 8.45-8.47.) If it is necessary to disclose material contained in a sealed or confidential record in a filing (including any application, brief, petition, or memorandum), counsel should file any required motion or application to file under seal, the unredacted copy of the filing, and the public redacted copy of the filing via TrueFiling. The document titles should appropriately reflect they are either the redacted or unredacted version.
See also Probation Report, Disclosing Confidential / Personal Information.
Sealed / Confidential Records, Obtaining
If the record on appeal includes a sealed or confidential record, and you did not receive a copy of the sealed of confidential record, check the Court’s docket for the case to see if the record has already been filed in the Court of Appeal. There is no need to file a motion to augment for a sealed or confidential record that is already filed with the Court of Appeal. Instead, if the defense had access to the sealed or confidential record in the trial court, file a motion in the Court of Appeal to send the sealed or confidential document to counsel. (See Cal. Rules of Court, rule 8.45(d).) If the defense did not have access to a sealed record in the trial court, consider filing a motion to unseal the record. (See Cal. Rules of Court, rule 8.46(e).)
A motion to obtain a sealed record does not toll the AOB due date. Counsel must submit a separate application for EOT. Sealed documents requested in a motion to augment will not normally be sent to counsel without a separate motion after the sealed material has been filed with the court.
When filing a motion to augment for a sealed record, do not at the same time move to obtain the sealed material. Instead, once the augmented record has been filed, THEN move to obtain the sealed record. On receipt of the motion to obtain, the Court will examine the sealed record and determine whether to grant counsel’s motion. In other words, they prefer a 2-step process rather than all-in-one motion.
Sealed / Confidential Records, Obtaining
A motion to obtain sealed or confidential records is treated the same as an augment motion and tolls the AOB due date.
Settled statements
Motions for a settled statement may be filed directly in the trial court with a copy sent to the clerk at the Third District. However, the pending motion in the trial court will not toll the AOB due date. In this court, submit a request to stay the appeal in order to complete the record settlement proceedings below; this court prefers a stay request rather than sequential extension requests.
Settled statements
Although rule 8.346 states that an application for permission to file a settled statement may be filed in the trial court, it is preferable for appointed counsel to file the application in this court first. The court will review the request and proposed motion for a settled statement and, if granted, will direct counsel to file the motion in the trial court. Subsequent extension of time requests in order to complete the record settlement proceedings in the trial court should include an update for the court on the progress made in the trial court to complete the task.
Stipulations affecting case outcome
The Third District has not issued a directive on this item.
Stipulations affecting case outcome
The Fifth District appreciates a courtesy telephone call to the clerk as soon as possible whenever parties engage in negotiations which might affect the progress of a case, such as a stipulation for reversal of judgment, or anything else which might affect the finality of the case. The clerk will ask counsel to submit a follow-up letter. While this advisement may not change the court’s workflow on a given case, it is regarded as a helpful notification to court staff.
VIEW VARIOUS SAMPLE MOTIONS TO SETTLE THE RECORD IN OUR ONLINE MOTIONS BOOK
SUBSTITUTION OUT OF A CASE: SEE “W” = WITHDRAWING FROM A CASE.
Supplemental brief
A supplemental brief may be submitted separately or simultaneously with the request to file it. However, the Third District prefers that the request to file a supplemental brief and the supplemental brief are submitted at the same time.
The application must show good cause, which includes:
- Why the supplemental brief is necessary; and
- Why the issue was not raised, or if raised, was not adequately briefed, in appellant’s opening brief.
If leave to file a supplemental brief (by either party) is granted, the court’s order will set a briefing schedule and whether a supplemental reply brief is permitted. If a reply brief is not listed in the order, counsel must separately seek leave to file a supplemental reply brief.
Supplemental brief
In the Fifth District, counsel should normally file a request for permission to file a supplemental brief along with the prepared supplemental brief.
Translator fees – preauthorization requests
CCAP is authorized by the Third District to approve up to $300 in translator expenses without court screening. Requests (and copies) for subsequent funding (in excess of $300) should be sent first to CCAP for our input and recommendation to the court.
Translator fees – preauthorization requests
The Fifth District’s policy is the same as the Third District.
WE NOW HAVE FOREIGN LANGUAGE RESOURCES AVAILABLE TO FACILITATE COMMUNICATION WITH NON-ENGLISH SPEAKING CLIENTS. CCAP IS PROVIDING THIS RESOURCE WITH THE HOPE THAT ANY APPROVED INTERPRETER FUNDS CAN BE RESERVED FOR ADVISING THE CLIENT ABOUT CASE SPECIFICS.
Travel (other than for oral argument) – preauthorization requests
Panel attorneys must obtain preapproval for all travel expenses (other than for oral argument) to be reimbursed for these expenses. CCAP is authorized to approve up to $600 in travel expenses without court screening. However, that authorization is limited and does not include habeas investigation.
For preapproval for travel expenses that exceed $600, the expense request should be sent first to CCAP for our input and recommendation to the court. Please review the articles listed below prior to drafting your request.
Travel (other than for oral argument) – preauthorization requests
The Fifth District’s policy is the same as the Third District.
THE JCC HAS ISSUED STATEWIDE TRAVEL GUIDELINES (PDF) FOR ALL APPOINTED COUNSEL.
FOR APPOINTED CASES IN THE THIRD AND THE FIFTH DISTRICT, REVIEW COURT AND PROJECT-SPECIFIC POLICIES ON OUR PREAUTHORIZATION PROCEDURES PAGE. CCAP ALSO RECOMMENDS THAT COUNSEL READ OUR SEPARATE TIPS ARTICLE BEFORE DRAFTING A REQUEST FOR PREAUTHORIZATION.
Withdrawing an argument
Send a request that includes a formal proof of service (not just noting cc: at the bottom). Indicate which issue is being withdrawn. No other formal motion is required.
Withdrawing an argument
The Fifth District has not issued a directive on this item.
Withdrawing from a case (for appointed counsel steps)
DO NOT TrueFile your motion! Follow the steps below:
First step: Contact Panel Manager Liz Smutz and the staff attorney assigned to your case(s) to discuss the contents of your motion. This is a very important step. The motion to withdraw is a publicly filed document and counsel’s reasons for withdrawing may be very personal. Liz can help guide you on the amount of information that is needed for the motion to withdraw.
Second step: When instructed, send a PDF-searchable-format motion to withdraw to CCAP, using “/s/ counsel’s typed name” on the signature line, and an executed proof of service. (Important note: the motion and proof of service should be ONE document, not two separate documents.)
Third step: Serve your client, opposing counsel, and counsel for any other parties by postal mail or via email. Do not use TrueFiling.
When CCAP receives the motion, it will be forwarded to the court for processing together with a recommendation for substitute counsel. (See Important Reminder below.)
Fourth step: Retain one original “wet” signature hardcopy of the motion in your file.
It is unnecessary to provide any additional paper copies to either CCAP or the court.
Important Reminder: You are counsel of record until the court issues an ORDER vacating your appointment and appointing new counsel on the case. This means that you are counsel of record while the motion is pending and are ethically responsible for all aspects of the case, including all due dates, until the court grants your motion and appoints new counsel in your stead.
It is unnecessary to provide the court supporting documentation. The courts will generally act on the motion to withdraw with generic details regarding health and other private situations. You may consider whether to offer sealed materials upon the court’s request.
Withdrawing from a case (for appointed counsel steps)
Use the same steps as the Third.
Writ petitions
Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court. Follow the steps outlined above for “Expansion requests.”
Writ petitions
Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court. Follow the steps outlined above for “Expansion requests.” The Fifth District requires that all petitions, other than habeas, be submitted with a completed coversheet called: “Appellate Court Writ Petition Information Sheet.” Truefiling gives filers the opportunity to fill out this required sheet and submit it with the petition and supporting documents.