Code of Civil Procedure — Section 901-914

Code of Civil Procedure

Section 901-914

901. A judgment or order in a civil action or proceeding may be reviewed as prescribed in this title. The Judicial Council shall prescribe rules for the practice and procedure on appeal not inconsistent with the provisions of this title.

902. Any party aggrieved may appeal in the cases prescribed in this title. A party appealing is known as an appellant, and an adverse party as a respondent.

902.1. In any case in which a notice was required pursuant to subdivision (e) of Section 664.5, the Attorney General shall have the right to intervene and participate in any appeal taken therefrom. These rights shall apply regardless of whether the Attorney General participated in the case in the trial court. However, the Attorney General has no direct right to appeal. If the Attorney General elects not to intervene and participate in the appeal, he or she shall file a statement with the Legislature and the Judicial Council stating the reason or reasons for the decision not to intervene and participate in the appeal. This statement may be in the form of an annual report to the Legislature and Judicial Council and that report shall be a matter of public record.

903. In the event of the death of any person who would, if still alive, have a right of appeal, either the attorney of record representing the decedent in the court in which the judgment was rendered, or the executor or administrator of the estate of the decedent, may file a notice of appeal therefrom within the time within which the decedent could have filed such a notice if he had survived.

904. An appeal may be taken in a civil action or proceeding as provided in Sections 904.1, 904.2, 904.3, and 904.5.

904.1. (a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following:

(1) From a judgment, except (A) an interlocutory judgment, other than as provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222.

(2) From an order made after a judgment made appealable by paragraph (1).

(3) From an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum, or from a written order of dismissal under Section 581d following an order granting a motion to dismiss the action on the ground of inconvenient forum.

(4) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.

(5) From an order discharging or refusing to discharge an attachment or granting a right to attach order.

(6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.

(7) From an order appointing a receiver.

(8) From an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting.

(9) From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made.

(10) From an order made appealable by the provisions of the Probate Code or the Family Code.

(11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).

(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).

(13) From an order granting or denying a special motion to strike under Section 425.16.

(b) Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.

904.2. An appeal of a ruling by a superior court judge or other judicial officer in a limited civil case is to the appellate division of the superior court. An appeal of a ruling by a superior court judge or other judicial officer in a limited civil case may be taken from any of the following:

(a) From a judgment, except

(1) an interlocutory judgment, or (2) a judgment of contempt that is made final and conclusive by Section 1222.

(b) From an order made after a judgment made appealable by subdivision (a).

(c) From an order changing or refusing to change the place of trial.

(d) From an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum, or from a written order of dismissal under Section 581d following an order granting a motion to dismiss the action on the ground of inconvenient forum.

(e) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict.

(f) From an order discharging or refusing to discharge an attachment or granting a right to attach order.

(g) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.

(h) From an order appointing a receiver.

904.3. An appeal shall not be taken from a judgment of the appellate division of a superior court granting or denying a petition for issuance of a writ of mandamus or prohibition directed to the superior court, or a judge thereof, in a limited civil case or a misdemeanor or infraction case. An appellate court may, in its discretion, upon petition for extraordinary writ, review the judgment.

904.5. Appeals from the small claims division of a superior court shall be governed by the Small Claims Act (Chapter 5.5 (commencing with Section 116.110) of Title 1 of Part 1).

906. Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial, and may affirm, reverse or modify any judgment or order appealed from and may direct the proper judgment or order to be entered, and may, if necessary or proper, direct a new trial or further proceedings to be had. The respondent, or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken. The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken.

907. When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.

908. When the judgment or order is reversed or modified, the reviewing court may direct that the parties be returned so far as possible to the positions they occupied before the enforcement of or execution on the judgment or order. In doing so, the reviewing court may order restitution on reasonable terms and conditions of all property and rights lost by the erroneous judgment or order, so far as such restitution is consistent with rights of third parties and may direct the entry of a money judgment sufficient to compensate for property or rights not restored. The reviewing court may take evidence and make findings concerning such matters or may, by order, refer such matters to the trial court for determination.

909. In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.

911. A court of appeal may order any case on appeal to a superior court in its district transferred to it for hearing and decision as provided by rules of the Judicial Council when the superior court certifies, or the court of appeal determines, that the transfer appears necessary to secure uniformity of decision or to settle important questions of law. No case in which there is a right on appeal to a trial anew in the superior court shall be transferred pursuant to this section before a decision in the case becomes final therein. A court to which any case is transferred pursuant to this section shall have similar power to review any matter and make orders and judgments as the appellate division of the superior court would have in the case, except that if the case was tried anew in the superior court, the court of appeal shall have similar power to review any matter and make orders and judgments as it has in a case appealed pursuant to Section 904.1.

912. Upon final determination of an appeal by the reviewing court, the clerk of the court shall remit to the trial court a certified copy of the judgment or order of the reviewing court and of its opinion, if any. The clerk of the trial court shall file the certified copy of the judgment and opinion of the reviewing court, shall attach that copy to the judgment roll if the appeal was from a judgment, and shall enter a note of the judgment of the reviewing court stating whether the judgment or order appealed from has been affirmed, reversed or modified, in the margin of the original entry of the judgment or order, and also in the register of actions.

913. The dismissal of an appeal shall be with prejudice to the right to file another appeal within the time permitted, unless the dismissal is expressly made without prejudice to another appeal.

914. When the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule, because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.


Source: California Legislative Information official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.130. Reporter’s transcript

2010 California Rules of Court

Rule 8.130. Reporter’s transcript

(a) Notice

(1) If in the notice designating the record on appeal under rule 8.121, the appellant elects to use a reporter’s transcript, in that notice the appellant must specify the date of each proceeding to be included in the transcript, and may specify portions of designated proceedings that are not to be included.

(2) If the appellant designates less than all the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.

(3) If the appellant serves and files a notice designating a reporter’s transcript, the respondent may, within 10 days after such service, serve and file a notice in superior court designating any additional proceedings the respondent wants included in the transcript.

(4) If the appellant elects to proceed without a reporter’s transcript, the respondent cannot require that a reporter’s transcript be prepared. But the reviewing court, on its own or the respondent’s motion, may order the record augmented under rule 8.155 to prevent a miscarriage of justice. Unless the court orders otherwise, the appellant is responsible for the cost of any reporter’s transcript the court may order under this subdivision.

(5) Any notice of designation must be served on each known reporter of the designated proceedings.

(Subd (a) amended effective January 1, 2008; previously amended effective January 1, 2005, and January 1, 2007.)

(b) Deposit or substitute for cost of transcript

(1) With its notice of designation, a party must deposit with the superior court clerk the approximate cost of transcribing the proceedings it designates, using either:

(A) The reporter’s written estimate; or

(B) An amount calculated at $325 per fraction of the day’s proceedings that did not exceed three hours, or $650 per day or fraction that exceeded three hours.

(2) If the reporter believes the deposit is inadequate, within 15 days after the clerk mails the notice under (d)(1) the reporter may file with the clerk and mail to the designating party an estimate of the transcript’s total cost, showing the additional deposit required. The party must deposit the additional sum within 10 days after the reporter mails the estimate.

(3) Instead of a deposit, the party may substitute the reporter’s written waiver of a deposit, a copy of a Transcript Reimbursement Fund application filed under (c)(1), or a certified transcript of the designated proceedings. A reporter may waive the deposit for-and a party may submit a certified transcript of-a part of the designated proceedings, but such a waiver or transcript replaces the deposit for only that part.

(Subd (b) amended effective January 1, 2010; previously amended effective January 1, 2007.)

(c) Transcript Reimbursement Fund application

(1) With its notice of designation, a party may serve and file a copy of its application to the Court Reporters Board for payment or reimbursement from the Transcript Reimbursement Fund under Business and Professions Code section 8030.2 et seq.

(2) If the Court Reporters Board approves the application for payment or reimbursement, the reporter’s time to prepare the transcript under (f)(1) begins when the reporter receives notice of the approval.

(3) If the Court Reporters Board denies the application for payment or reimbursement, the party’s time to deposit the reporter’s fee or substitute under (b), or to file an agreed or settled statement under rule 8.134 or 8.137, is extended until 30 days after the board mails notice of the denial.

(Subd (c) amended effective January 1, 2007.)

(d) Superior court clerk’s duties

(1) If a party designates proceedings to be included in a reporter’s transcript and has presented the fee deposit or a substitute under (b)(3), the clerk must promptly mail the reporter notice of the designation and of the deposit or substitute. The notice must show the date it was mailed.

(2) If a party does not present the deposit or a substitute with its notice of designation, the clerk must file the notice and promptly issue a notice of default under rule 8.140.

(3) The clerk must promptly notify the reporter if a check for a deposit is dishonored or an appeal is abandoned or is dismissed before the reporter has filed the transcript.

(Subd (d) amended effective January 1, 2008; previously amended effective January 1, 2007.)

(e) Contents of transcript

(1) The reporter must transcribe all designated proceedings for which a certified transcript has not been substituted under (b)(3), and must note in the transcript where any proceedings were omitted and the nature of those proceedings. The reporter must also note where any exhibit was marked for identification and where it was admitted or refused, identifying such exhibits by number or letter.

(2) If a party designates a portion of a witness’s testimony to be transcribed, the reporter must transcribe the witness’s entire testimony unless the parties stipulate otherwise.

(3) The reporter must not copy any document includable in the clerk’s transcript under rule 8.122.

(Subd (e) amended effective January 1, 2008; previously amended effective January 1, 2007.)

(f) Filing the transcript; copies; payment

(1) Within 30 days after notice is received under (c)(2) or mailed under (d)(1), the reporter must prepare and certify an original of the transcript and file it in superior court. The reporter must also file one copy of the original transcript, or more than one copy if multiple appellants equally share the cost of preparing the record (see rule 8.147(a)(2)). Only the reviewing court can extend the time to prepare the reporter’s transcript (see rule 8.60).

(2) When the transcript is completed, the reporter must bill each designating party at the statutory rate and send a copy of the bill to the superior court clerk. The clerk must pay the reporter from that party’s deposited funds and refund any excess deposit or notify the party of any additional funds needed. In a multiple reporter case, the clerk must pay each reporter who certifies under penalty of perjury that his or her transcript portion is completed.

(3) If the appeal is abandoned or is dismissed before the reporter has filed the transcript, the reporter must inform the superior court clerk of the cost of the portion of the transcript that the reporter has completed. The clerk must pay that amount to the reporter from the appellant’s deposited funds and refund any excess deposit.

(4) On request, and unless the superior court orders otherwise, the reporter must provide any party with a copy of the reporter’s transcript in computer-readable format. Each computer-readable copy must comply with the format, labeling, content, and numbering requirements of Code of Civil Procedure section 271(b).

(Subd (f) amended effective July 1, 2008; previously amended effective January 1, 2007.)

(g) Agreed or settled statement when proceedings cannot be transcribed

(1) If any portion of the designated proceedings cannot be transcribed, the superior court clerk must so notify the designating party by mail; the notice must show the date it was mailed. The party may then substitute an agreed or settled statement for that portion of the designated proceedings by complying with either (A) or (B):

(A) Within 10 days after the notice is mailed, the party may file in superior court, under rule 8.134, an agreed statement or a stipulation that the parties are attempting to agree on a statement. If the party files a stipulation, within 30 days thereafter the party must file the agreed statement, move to use a settled statement under rule 8.137, or proceed without such a statement; or

(B) Within 10 days after the notice is mailed, the party may move in superior court to use a settled statement. If the court grants the motion, the statement must be served, filed, and settled as rule 8.137 provides, but the order granting the motion must fix the times for doing so.

(2) If the agreed or settled statement contains all the oral proceedings, it will substitute for the reporter’s transcript; if it contains a portion of the proceedings, it will be incorporated into that transcript.

(3) This remedy supplements any other available remedies.

(Subd (g) amended effective January 1, 2007.)

Rule 8.130 amended effective January 1, 2010; repealed and adopted as rule 4 effective January 1, 2002; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2005, January 1, 2008, and July 1, 2008.

Advisory Committee Comment

Under rule 8.121 an appellant may serve and file a notice designating a reporter’s transcript and the notice must identify the proceedings to be included. The wording recognizes that under rule 8.130(b)(3) the appellant, instead of depositing the reporter’s cost to transcribe the proceedings, may substitute certified transcripts of proceedings that have already been transcribed (e.g., daily transcripts) and hence need only be designated for inclusion in the transcript.

Subdivision (a). Subdivision (a)(1) requires that every notice designating a reporter’s transcript identify which proceedings are to be included, and that it do so by specifying the date or dates on which those proceedings took place; if the appellant does not want a portion of the proceedings on a given date to be included, the notice should identify that portion by means of a descriptive reference (e.g., “August 3, 2004, but not the proceedings on defendant’s motion to tax costs”).

As used in subdivision (a)(1), the phrase “oral proceedings” includes all instructions that the court gives, whether or not submitted in writing, and any instructions that counsel orally propose but the court refuses; all such instructions are included in the reporter’s transcript if designated under this rule. All instructions that counsel submit in writing, whether or not given to the jury, are lodged with the superior court clerk and are included in the clerk’s transcript if designated under rule 8.122.

Under subdivision (a), portions of depositions read in open court but not reported, or not read but lodged with the superior court clerk, are included in the clerk’s transcript if designated under rule 8.122.

Subdivision (b). To eliminate any ambiguity, subdivision (b)(3) recognizes, first, that a party may substitute a waiver or a certified transcript for part of the designated proceedings and, second, that in such event the waiver or transcript replaces the deposit for only that part.

Subdivision (c). Under subdivision (c), an application to the Court Reporters Board for payment or reimbursement of the cost of the reporter’s transcript from the Transcript Reimbursement Fund (Bus. & Prof. Code, § 8030.8) is a permissible substitute for the required deposit of the reporter’s fee (subd. (b)(3)) and thereby prevents issuance of a notice of default (subd. (d)(4)).

Business and Professions Code sections 8030.6 and 8030.8 use the term “reimbursement” to mean not only a true reimbursement, i.e., repaying a party who has previously paid the reporter out of the party’s own funds (see id., § 8030.8, subd. (d)), but also a direct payment to a reporter who has not been previously paid by the party (see id., § 8030.6, subds. (b) and (d)). Subdivision (f) recognizes this special dual meaning by consistently using the compound phrase “payment or reimbursement.”

Subdivision (d). Under subdivision (d)(1), the clerk’s notice to the reporter must show the date on which the clerk mailed the notice. This provision is intended to establish the date when the period for preparing the reporter’s transcript under subdivision (f)(1) begins to run.

Subdivision (e). Subdivision (e)(3) is not intended to relieve the reporter of the duty to report all oral proceedings, including the reading of instructions or other documents.

Subdivision (f). Subdivision (f)(1) requires the reporter to prepare and file additional copies of the record “if multiple appellants equally share the cost of preparing the record. . . .” The reason for the requirement is explained in the comment to rule 8.147(a)(2).

Implementing statutory provisions (e.g., Code Civ. Proc., § 269, subd. (c); Gov. Code, § 69954), subdivision (f)(4) requires the reporter to provide a party, on request, with a copy of the reporter’s transcript in computer-readable format. But in recognition of the fact that in some instances the reporter may be unable to provide a copy in that format, the subdivision also authorizes the reporter to apply to the superior court for relief from this requirement.


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.124. Appendixes

2010 California Rules of Court

Rule 8.124. Appendixes

(a) Notice of election

(1) Unless the superior court orders otherwise on a motion served and filed within 10 days after the notice of election is served, this rule governs if:

(A) The appellant elects to use an appendix under this rule in the notice designating the record on appeal under rule 8.121; or

(B) The respondent serves and files a notice in the superior court electing to use an appendix under this rule within 10 days after the notice of appeal is filed and no waiver of the fee for a clerk’s transcript is granted to the appellant.

(2) When a party files a notice electing to use an appendix under this rule, the superior court clerk must promptly send a copy of the register of actions, if any, to the attorney of record for each party and to any unrepresented party.

(3) The parties may prepare separate appendixes, but are encouraged to stipulate to a joint appendix.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2005, January 1, 2007, and January 1, 2008.)

(b) Contents of appendix

(1) A joint appendix or an appellant’s appendix must contain:

(A) All items required by rule 8.122(b)(1), showing the dates required by rule 8.122(b)(2);

(B) Any item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues, including, for an appellant’s appendix, any item that the appellant should reasonably assume the respondent will rely on;

(C) The notice of election; and

(D) For a joint appendix, the stipulation designating its contents.

(2) An appendix may incorporate by reference all or part of the record on appeal in another case pending in the reviewing court or in a prior appeal in the same case.

(A) The other appeal must be identified by its case name and number. If only part of a record is being incorporated by reference, that part must be identified by citation to the volume and page numbers of the record where it appears and either the title of the document or documents or the date of the oral proceedings to be incorporated. The parts of any record incorporated by reference must be identified both in the body of the appendix and in a separate section at the end of the index.

(B) If the appendix incorporates by reference any such record, the cover of the appendix must prominently display the notice “Record in case number:____ incorporated by reference,” identifying the number of the case from which the record is incorporated.

(C) On request of the reviewing court or any party, the designating party must provide a copy of the materials incorporated by reference to the court or another party or lend them for copying as provided in (c).

(3) An appendix must not:

(A) Contain documents or portions of documents filed in superior court that are unnecessary for proper consideration of the issues.

(B) Contain transcripts of oral proceedings that may be designated under rule 8.130.

(C) Contain the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the trial court. Any such administrative record must be transmitted to the reviewing court as specified in rule 8.123.

(D) Incorporate any document by reference except as provided in (2).

(4) All exhibits admitted in evidence, refused, or lodged are deemed part of the record, whether or not the appendix contains copies of them.

(5) A respondent’s appendix may contain any document that could have been included in the appellant’s appendix or a joint appendix.

(6) An appellant’s reply appendix may contain any document that could have been included in the respondent’s appendix.

(Subd (b) amended effective January 1, 2010; previously amended January 1, 2007, and January 1, 2008.)

(c) Document or exhibit held by other party

If a party preparing an appendix wants it to contain a copy of a document or an exhibit in the possession of another party:

(1) The party must first ask the party possessing the document or exhibit to provide a copy or lend it for copying. All parties should reasonably cooperate with such requests.

(2) If the attempt under (1) is unsuccessful, the party may serve and file in the reviewing court a notice identifying the document or specifying the exhibit’s trial court designation and requesting the party possessing the document or exhibit to deliver it to the requesting party or, if the possessing party prefers, to the reviewing court. The possessing party must comply with the request within 10 days after the notice was served.

(3) If the party possessing the document or exhibit sends it to the requesting party, that party must copy and return it to the possessing party within 10 days after receiving it.

(4) If the party possessing the document or exhibit sends it to the reviewing court, that party must:

(A) Accompany the document or exhibit with a copy of the notice served by the requesting party; and

(B) Immediately notify the requesting party that it has sent the document or exhibit to the reviewing court.

(5) On request, the reviewing court may return a document or an exhibit to the party that sent it. When the remittitur issues, the reviewing court must return all documents or exhibits to the party that sent them.

(Subd (c) amended effective January 1, 2010; adopted effective January 1, 2005; previously amended effective January 1, 2007.)

(d) Form of appendix

(1) An appendix must comply with the requirements of rule 8.144(a)-(c) for a clerk’s transcript.

(2) In addition to the information required on the cover of a brief by rule 8.204(b)(10), the cover of an appendix must prominently display the title “Joint Appendix” or “Appellant’s Appendix” or “Respondent’s Appendix” or “Appellant’s Reply Appendix.”

(3) An appendix must not be bound with a brief.

(Subd (d) amended effective January 1, 2007; adopted as subd (c); relettered effective January 1, 2005.)

(e) Service and filing

(1) A party preparing an appendix must:

(A) Serve the appendix on each party, unless otherwise agreed by the parties or ordered by the reviewing court; and

(B) File the appendix in the reviewing court.

(2) A joint appendix or an appellant’s appendix must be served and filed with the appellant’s opening brief.

(3) A respondent’s appendix, if any, must be served and filed with the respondent’s brief.

(4) An appellant’s reply appendix, if any, must be served and filed with the appellant’s reply brief.

(Subd (e) amended effective January 1, 2007; adopted as subd (d); relettered effective January 1, 2005.)

(f) Cost of appendix

(1) Each party must pay for its own appendix.

(2) The cost of a joint appendix must be paid:

(A) By the appellant;

(B) If there is more than one appellant, by the appellants equally; or

(C) As the parties may agree.

(Subd (f) amended effective January 1, 2007; adopted as subd (e); relettered effective January 1, 2005.)

(g) Inaccurate or noncomplying appendix

Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file. The reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates this rule.

(Subd (g) relettered effective January 1, 2005; adopted as subd (f).)

Rule 8.124 amended effective January 1, 2010; repealed and adopted as rule 5.1 effective January 1, 2002; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2005, and January 1, 2008.

Advisory Committee Comment

Subdivision (a). Under this provision either party may elect to have the appeal proceed by way of an appendix. If the appellant’s fees for a clerk’s transcript are not waived and the respondent timely elects to use an appendix, that election will govern unless the superior court orders otherwise. This election procedure differs from all other appellate rules governing designation of a record on appeal. In those rules, the appellant’s designation, or the stipulation of the parties, determines the type of record on appeal. Before making this election, respondents should check whether the appellant has been granted a fee waiver that is still in effect. If the trial court has granted appellant a fee waiver for the clerk’s transcript, or grants such a waiver after the notice of appeal is filed, respondent cannot elect to proceed by way of an appendix.

Subdivision (a)(2) is intended to assist appellate counsel in preparing an appendix by providing them with the list of pleadings and other filings found in the register of actions or “docket sheet” in those counties that maintain such registers. (See Gov. Code, § 69845.) The provision is derived from rule 10-1 of the United States Circuit Rules (9th Cir.).

Subdivision (b). Under subdivision (b)(1)(A), a joint appendix or an appellant’s appendix must contain any register of actions that the clerk sent to the parties under subdivision (a)(2). This provision is intended to assist the reviewing court in determining the accuracy of the appendix. The provision is derived from rule 30-1.3(a)(ii) of the United States Circuit Rules (9th Cir.).

In support of or opposition to pleadings or motions, the parties may have filed a number of lengthy documents in the proceedings in superior court, including, for example, declarations, memorandums, trial briefs, documentary exhibits (e.g., insurance policies, contracts, deeds), and photocopies of judicial opinions or other publications. Subdivision (b)(3)(A) prohibits the inclusion of such documents in an appendix when they are not necessary for proper consideration of the issues raised in the appeal. Even if a document is otherwise includable in an appendix, the rule prohibits the inclusion of any substantial portion of the document that is not necessary for proper consideration of the issues raised in the appeal. The prohibition is intended to simplify and therefore expedite the preparation of the appendix, to reduce its cost to the parties, and to relieve the courts of the burden of reviewing a record containing redundant, irrelevant, or immaterial documents. The provision is adapted from rule 30-1.4 of the United States Circuit Rules (9th Cir.).

Subdivision (d). In current practice, served copies of filed documents often bear no clerk’s date stamp and are not conformed by the parties serving them. Consistently with this practice, subdivision (d) does not require such documents to be conformed. The provision thereby relieves the parties of the burden of obtaining conformed copies at the cost of considerable time and expense and expedites the preparation of the appendix and the processing of the appeal. It is to be noted, however, that under subdivision (b)(1)(A) each document necessary to determine the timeliness of the appeal must show the date required under rule 8.104 or 8.108. Note also that subdivision (g) of rule 8.124 provides that a party filing an appendix represents under penalty of sanctions that its copies of documents are accurate.

Subdivision (e). Subdivision (e)(2) requires a joint appendix to be filed with the appellant’s opening brief. The provision is intended to improve the briefing process by enabling the appellant’s opening brief to include citations to the record. To provide for the case in which a respondent concludes in light of the appellant’s opening brief that the joint appendix should have included additional documents, subdivision (b)(5) permits such a respondent to present in an appendix filed with its respondent’s brief (see subd. (e)(3)) any document that could have been included in the joint appendix.

Under subdivision (e)(2)-(4) an appendix is required to be filed “with” the associated brief. This provision is intended to clarify that an extension of a briefing period ipso facto extends the filing period of an appendix associated with the brief.

Subdivision (g). Under subdivision (g), sanctions do not depend on the degree of culpability of the filing party-i.e., on whether the party’s conduct was willful or negligent-but on the nature of the inaccuracies and the importance of the documents they affect.


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.66. Extending time because of public emergency

2010 California Rules of Court

Rule 8.66. Extending time because of public emergency

(a) Emergency extensions of time

If made necessary by the occurrence or danger of an earthquake, fire, or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the Chair of the Judicial Council, notwithstanding any other rule in this title, may:

(1) Extend by no more than 14 additional days the time to do any act required or permitted under these rules; or

(2) Authorize specified courts to extend by no more than 30 additional days the time to do any act required or permitted under these rules.

(Subd (a) amended effective January 1, 2007.)

(b) Applicability of order

(1) An order under (a) must specify whether it applies throughout the state, only to specified courts, or only to courts or attorneys in specified geographic areas, or applies in some other manner.

(2) An order of the Chair of the Judicial Council under (a)(2) must specify the length of the authorized extension.

(c) Additional extensions

If made necessary by the nature or extent of the public emergency, the Chair of the Judicial Council may extend or renew an order issued under (a) for an additional period of:

(1) No more than 14 days for an order under (a)(1); or

(2) No more than 30 days for an order under (a)(2).

(Subd (c) amended effective January 1, 2007.)

Rule 8.66 amended and renumbered effective January 1, 2007; repealed and adopted as rule 45.1 effective January 1, 2005.

Advisory Committee Comment. The Chief Justice of California is the Chair of the Judicial Council (see rule 10.2).


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.108. Extending the time to appeal

2010 California Rules of Court

Rule 8.108. Extending the time to appeal

(a) Extension of time

This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.

(Subd (a) adopted effective January 1, 2008.)

(b) Motion for new trial

If any party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended for all parties as follows:

(1) If the motion is denied, until the earliest of:

(A) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

(B) 30 days after denial of the motion by operation of law; or

(C) 180 days after entry of judgment.

(2) If any party serves an acceptance of a conditionally ordered additur or remittitur of damages pursuant to a trial court finding of excessive or inadequate damages, until 30 days after the date the party serves the acceptance.

(Subd (b) amended and relettered effective January 1, 2008; adopted as subd (a).)

(c) Motion to vacate judgment

If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move-or a valid motion-to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:

(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

(2) 90 days after the first notice of intention to move-or motion-is filed; or

(3) 180 days after entry of judgment.

(Subd (c) relettered effective January 1, 2008; adopted as subd (b); previously amended effective January 1, 2007.)

(d) Motion for judgment notwithstanding the verdict

(1) If any party serves and files a valid motion for judgment notwithstanding the verdict and the motion is denied, the time to appeal from the judgment is extended for all parties until the earliest of:

(A) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

(B) 30 days after denial of the motion by operation of law; or

(C) 180 days after entry of judgment.

(2) Unless extended by (e)(2), the time to appeal from an order denying a motion for judgment notwithstanding the verdict is governed by rule 8.104.

(Subd (d) relettered effective January 1, 2008; adopted as subd (c); previously amended effective January 1, 2007.)

(e) Motion to reconsider appealable order

If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of:

(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

(2) 90 days after the first motion to reconsider is filed; or

(3) 180 days after entry of the appealable order.

(Subd (e) relettered effective January 1, 2008; adopted as subd (d).)

(f) Cross-appeal

(1) If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal.

(2) If an appellant timely appeals from an order granting a motion for new trial, an order granting-within 150 days after entry of judgment-a motion to vacate the judgment, or a judgment notwithstanding the verdict, the time for any other party to appeal from the original judgment or from an order denying a motion for judgment notwithstanding the verdict is extended until 20 days after the clerk mails notification of the first appeal.

(Subd (f) relettered effective January 1, 2008; adopted as subd (e).)

(g) Showing date of order or notice; proof of service

An order or notice mailed by the clerk under this rule must show the date it was mailed. An order or notice served by a party must be accompanied by proof of service.

(Subd (g) relettered effective January 1, 2008; adopted as subd (f).)

Rule 8.108 amended effective January 1, 2008; repealed and adopted as rule 3 effective January 1, 2002; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivisions (b)-(e) operate only when a party serves and files a “valid” motion or notice of intent to move for the relief in question. As used in these provisions, the word “valid” means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious. For example, under the rule a timely new trial motion on the ground of excessive damages (Code Civ. Proc., § 657) extends the time to appeal from the judgment even if the trial court ultimately determines the damages were not excessive. Similarly, a timely motion to reconsider (id., § 1008) extends the time to appeal from an appealable order for which reconsideration was sought even if the trial court ultimately determines the motion was not “based upon new or different facts, circumstances, or law,” as subdivision (a) of section 1008 requires.

Subdivision (b). Subdivision (b)(1) provides that the denial of a motion for new trial triggers a 30-day extension of the time to appeal from the judgment beginning on the date that the superior court clerk mails, or a party serves, either the order of denial or a notice of entry of that order. This provision is intended to eliminate a trap for litigants and to make the rule consistent with the primary rule on the time to appeal from the judgment (rule 8.104(a)).

Subdivision (c). The Code of Civil Procedure provides two distinct statutory motions to vacate a judgment: (1) a motion to vacate a judgment and enter “another and different judgment” because of judicial error (id., § 663), which requires a notice of intention to move to vacate (id., § 663a); and (2) a motion to vacate a judgment because of mistake, inadvertence, surprise, or neglect, which requires a motion to vacate but not a notice of intention to so move (id., § 473, subd. (b)). The courts also recognize certain nonstatutory motions to vacate a judgment, e.g., when the judgment is void on the face of the record or was obtained by extrinsic fraud. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-236, pp. 726-750.) Subdivision (c) is intended to apply to all such motions.

In subdivision (c) the phrase “within the time prescribed by rule 8.104 to appeal from the judgment” is intended to incorporate in full the provisions of rule 8.104(a).

Under subdivision (c)(1), the 30-day extension of the time to appeal from the judgment begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. This provision is discussed further under subdivision (b) of this comment.

Subdivision (d). Subdivision (d)(1) provides an extension of time after an order denying a motion for judgment notwithstanding the verdict regardless of whether the moving party also moved unsuccessfully for a new trial.

Subdivision (d) further specifies the times to appeal when, as often occurs, a motion for judgment notwithstanding the verdict is joined with a motion for new trial and both motions are denied. Under subdivision (b), the appellant has 30 days after notice of the denial of the new trial motion to appeal from the judgment. Subdivision (d) allows the appellant the longer time provided by rule 8.104 to appeal from the order denying the motion for judgment notwithstanding the verdict, subject to that time being further extended in the circumstances covered by subdivision (f)(2).

Under subdivision (d)(1)(A), the 30-day extension of the time to appeal from the judgment begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. This provision is discussed further under subdivision (b) of this comment.

Subdivision (e). The scope of subdivision (e) is specific. It applies to any “appealable order,” whether made before or after judgment (see Code Civ. Proc., § 904.1, subd. (a)(2)-(12)), but it extends only the time to appeal “from that order.” The subdivision thus takes no position on whether a judgment is subject to a motion to reconsider (see, e.g., Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236-1238 [postjudgment motion to reconsider order granting summary judgment did not extend time to appeal from judgment because trial court had no power to rule on such motion after entry of judgment]), or whether an order denying a motion to reconsider is itself appealable (compare Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710-711 [order appealable if motion based on new facts] with Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 [order not appealable under any circumstances]). Both these issues are legislative matters.

Subdivision (e) applies only when a “party” makes a valid motion to “reconsider” an appealable order under subdivision (a) of Code of Civil Procedure section 1008; it therefore does not apply when a court reconsiders an order on its own motion (id., subd. (d)) or when a party makes “a subsequent application for the same order” (id., subd. (c)). The statute provides no time limits within which either of the latter events must occur.

Under subdivision (e)(1), the 30-day extension of the time to appeal from the order begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. The purpose of this provision is discussed further under subdivision (b) of this comment.

Among its alternative periods of extension of the time to appeal, subdivision (e) provides in paragraph (2) for a 90-day period beginning on the filing of the motion to reconsider or, if there is more than one such motion, the filing of the first such motion. The provision is consistent with subdivision (c)(2), governing motions to vacate judgment; as in the case of those motions, there is no time limit for a ruling on a motion to reconsider.

Subdivision (f). Consistent with case law, subdivision (f)(1) extends the time to appeal after another party appeals only if the later appeal is taken “from the same order or judgment as the first appeal.” (Commercial & Farmers Nat. Bank v. Edwards (1979) 91 Cal.App.3d 699, 704.)

The former rule (former rule 3(c), second sentence) provided an extension of time for filing a protective cross-appeal from the judgment when the trial court granted a motion for new trial or a motion to vacate the judgment, but did not provide the same extension when the trial court granted a motion for judgment notwithstanding the verdict. One case declined to infer that the omission was unintentional, but suggested that the Judicial Council might consider amending the rule to fill the gap. (Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal.App.3d 775, 778 & fn. 3.) Rule 8.108(e)(2) fills the gap thus identified.

Subdivision (g). Under subdivision (g), an order or notice mailed by the clerk under this rule must show the date on which the clerk mailed the document, analogously to the clerk’s “certificate of mailing” currently in use in many superior courts. This provision is intended to establish the date when an extension of the time to appeal begins to run after the clerk mails such an order or notice.

Subdivision (g) also requires that an order or notice served by a party under this rule be accompanied by proof of service. The proof of service establishes the date when an extension of the time to appeal begins to run after the party serves such an order or notice.


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.104. Time to appeal

2010 California Rules of Court

Rule 8.104. Time to appeal

Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

(1) 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was served;

(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

(3) 180 days after entry of judgment.

(4) Service under (1) and (2) may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under Code of Civil Procedure section 1010.6 and rules 2.250-2.261.

(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2007.)

(b) No extension of time; late notice of appeal

Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.

(Subd (b) amended effective January 1, 2007; adopted effective January 1, 2005.)

(c) Periodic payment of judgments against public entities

If a public entity elects, under Government Code section 984 and rule 3.1804, to pay a judgment in periodic payments, subdivision (a) of this rule governs the time to appeal from that judgment but the periods prescribed in (a)(1) and (2) are each 90 days.

(Subd (c) amended effective January 1, 2007; adopted as subd (b); relettered effective January 1, 2005.)

(d) What constitutes entry

For purposes of this rule:

(1) The entry date of a judgment is the date the judgment is filed under Code of Civil Procedure section 668.5, or the date it is entered in the judgment book.

(2) The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order.

(3) The entry date of an appealable order that is not entered in the minutes is the date the signed order is filed.

(4) The entry date of a decree of distribution in a probate proceeding is the date it is entered at length in the judgment book or other permanent court record.

(Subd (d) amended effective January 1, 2007; adopted as subd (c); relettered effective January 1, 2005.)

(e) Premature notice of appeal

(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment.

(2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.

(Subd (e) relettered effective January 1, 2005; adopted as subd (d).)

(f) Appealable order

As used in (a) and (e), “judgment” includes an appealable order if the appeal is from an appealable order.

(Subd (f) amended effective January 1, 2005.)

Rule 8.104 amended effective January 1, 2010; repealed and adopted as rule 2 effective January 1, 2002; previously amended effective January 1, 2005; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivision (a). Under subdivision (a)(1), a notice of entry of judgment (or a copy of the judgment) must show the date on which the clerk served the document. The proof of service establishes the date that the 60-day period under subdivision (a)(1) begins to run.

Subdivision (a)(2) requires that a notice of entry of judgment (or a copy of the judgment) served by or on a party be accompanied by proof of service. The proof of service establishes the date that the 60-day period under subdivision (a)(2) begins to run. Although the general rule on service (rule 8.25(a)) requires proof of service for all documents served by parties, the requirement is reiterated here because of the serious consequence of a failure to file a timely notice of appeal (see subd. (e)).

Subdivision (b). See rule 8.25(b)(5) for provisions concerning the timeliness of documents mailed by inmates and patients from custodial institutions. Subdivision (b) is declarative of the case law, which holds that the reviewing court lacks jurisdiction to excuse a late-filed notice of appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-674; Estate of Hanley (1943) 23 Cal.2d 120, 122-124.)

In criminal cases, the time for filing a notice of appeal is governed by rule 8.308 and by the case law of “constructive filing.” (See, e.g., In re Benoit (1973) 10 Cal.3d 72.)


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.100. Filing the appeal

2010 California Rules of Court

Rule 8.100. Filing the appeal

(a) Notice of appeal

(1) To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellant’s attorney must sign the notice.

(2) The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located.

(3) Failure to serve the notice of appeal neither prevents its filing nor affects its validity, but the appellant may be required to remedy the failure.

(b) Fee and deposit

(1) Unless otherwise provided by law, the notice of appeal must be accompanied by a $655 filing fee under Government Code sections 68926 and 68926.1(b), an application for a waiver of court fees and costs on appeal under rule 8.26, or an order granting such an application. The fee should be paid by check or money order payable to “Clerk, Court of Appeal”; if the fee is paid in cash, the clerk must give a receipt.

(2) The appellant must also deposit $100 with the superior court clerk under Government Code section 68926.1, unless otherwise provided by law or the superior court waives the deposit.

(3) The clerk must file the notice of appeal even if the appellant does not present the filing fee, the deposit, or an application for, or order granting, a waiver of fees and costs.

(Subd (b) amended effective July 1, 2009; previously amended effective August 17, 2003, and January 1, 2007.)

(c) Failure to pay filing fee

(1) The reviewing court clerk must promptly notify the appellant in writing if:

(A) The reviewing court receives a notice of appeal without the filing fee required by (b)(1), a certificate of cash payment under (e)(5), or an application for, or order granting, a fee waiver under rule 8.26;

(B) A check for the filing fee is dishonored; or

(C) An application for a waiver under rule 8.26 is denied.

(2) A clerk’s notice under (1)(A) or (B) must state that the court may dismiss the appeal unless, within 15 days after the notice is sent, the appellant either:

(A) Pays the fee; or

(B) Files an application for a waiver under rule 8.26 if the appellant has not previously filed such an application.

(3) If the appellant fails to take the action specified in a notice given under (2), the reviewing court may dismiss the appeal, but may vacate the dismissal for good cause.

(Subd (c) amended effective July 1, 2009; previously amended effective January 1, 2007, and January 1, 2008.)

(d) Failure to pay deposit

(1) If the appellant fails to pay the deposit to the superior court required under (b)(2), the superior court clerk must promptly notify the appellant in writing that the reviewing court may dismiss the appeal unless, within 15 days after the notice is sent, the appellant either:

(A) Makes the deposit; or

(B) Files an application in the superior court for a waiver of fees and costs if the appellant has not previously filed such an application or an order granting such an application.

(2) If the appellant fails to take the action specified in a notice given under (1), the superior court clerk must notify the reviewing court of the default.

(3) If the superior court clerk notifies the reviewing court of a default under (2), the reviewing court may dismiss the appeal, but may vacate the dismissal for good cause.

(Subd (d) amended effective July 1, 2009; adopted effective January 1, 2008.)

(e) Superior court clerk’s duties

(1) The superior court clerk must promptly mail a notification of the filing of the notice of appeal to the attorney of record for each party, to any unrepresented party, and to the reviewing court clerk.

(2) The notification must show the date it was mailed and must state the number and title of the case and the date the notice of appeal was filed. If the information is available, the notification must include:

(A) The name, address, telephone number, and California State Bar number of each attorney of record in the case;

(B) The name of the party each attorney represented in the superior court; and

(C) The name, address, and telephone number of any unrepresented party.

(3) A copy of the notice of appeal is sufficient notification under (1) if the required information is on the copy or is added by the superior court clerk.

(4) The mailing of a notification under (1) is a sufficient performance of the clerk’s duty despite the death of the party or the discharge, disqualification, suspension, disbarment, or death of the attorney.

(5) With the notification of the appeal, the superior court clerk must send the reviewing court the filing fee or an application for, or order granting, a waiver of that fee. If the fee was paid in cash, the clerk must send the reviewing court a certificate of payment and thereafter a check for the amount of the fee.

(6) Failure to comply with any provision of this subdivision does not affect the validity of the notice of appeal.

(f) Notice of cross-appeal

As used in this rule, “notice of appeal” includes a notice of cross-appeal and “appellant” includes a respondent filing a notice of cross-appeal.

(Subd (f) relettered effective January 1, 2008; adopted as subd (e).)

(g) Civil case information statement

(1) On receiving notice of the filing of a notice of appeal under (e)(1), the reviewing court clerk must promptly mail the appellant a copy of the Civil Case Information Statement (form APP-004) and a notice that the statement must be filed within 10 days.

(2) Within 10 days after the clerk mails the notice required by (1), the appellant must serve and file in the reviewing court a completed Civil Case Information Statement, attaching a copy of the judgment or appealed order that shows the date it was entered.

(3) If the appellant fails to timely file a case information statement under (2), the reviewing court clerk must notify the appellant by mail that the appellant must file the statement within 15 days after the clerk’s notice is mailed and that if the appellant fails to comply, the court may either impose monetary sanctions or dismiss the appeal. If the appellant fails to file the statement as specified in the notice, the court may impose the sanctions specified in the notice.

(Subd (g) amended and relettered effective January 1, 2008; adopted as subd (f) effective January 1, 2003; previously amended effective January 1, 2007.)

Rule 8.100 amended effective July 1, 2009; repealed and adopted as rule 1 effective January 1, 2002; previously amended effective January 1, 2003, August 17, 2003, and January 1, 2008; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivision (a). In subdivision (a)(1), the reference to “judgment” is intended to include part of a judgment. Subdivision (a)(1) includes an explicit reference to “appealable order” to ensure that litigants do not overlook the applicability of this rule to such orders.

Subdivision (b). In the interest of consistency, subdivision (b)(1) recommends a preferred wording-“Clerk, Court of Appeal”-for the name of the payee of checks or money orders for the filing fee. The provision is not mandatory.

Subdivision (c)(2). This subdivision addresses the content of a clerk’s notice that a check for the filing fee has been dishonored or that the reviewing court has received a notice of appeal without the filing fee, a certificate of cash payment, or an application for, or order granting, a fee waiver. Rule 8.26(f) addresses what an appellant must do when a fee waiver application is denied.

Subdivision (e). Under subdivision (e)(2), a notification of the filing of a notice of appeal must show the date that the clerk mailed the document. This provision is intended to establish the date when the 20-day extension of the time to file a cross-appeal under rule 8.108(e) begins to run.

Subdivision (e)(1) requires the clerk to mail a notification of the filing of the notice of appeal to the appellant’s attorney or to the appellant if unrepresented. Knowledge of the date of that notification allows the appellant’s attorney or the appellant to track the running of the 20-day extension of time to file a cross-appeal under rule 8.108(e).


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.

2010 California Rules of Court — Rule 8.121. Notice designating the record on appeal

2010 California Rules of Court

Rule 8.121. Notice designating the record on appeal

(a) Time to file

Within 10 days after filing the notice of appeal, an appellant must serve and file a notice in the superior court designating the record on appeal. The appellant may combine its notice designating the record with its notice of appeal.

(b) Contents

(1) The notice must:

(A) Specify the date the notice of appeal was filed.

(B) Specify which form of the record of the written documents from the superior court proceedings listed in rule 8.120(a)(1) the appellant elects to use. If the appellant elects to use a clerk’s transcript, the notice must also designate the documents to be included in the clerk’s transcript as required under rule 8.122(b)(1).

(C) Specify whether the appellant elects to proceed with or without a record of the oral proceedings in the trial court. If the appellant elects to proceed with a record of the oral proceedings in the trial court, the notice must specify which form of the record listed in rule 8.120(b) the appellant elects to use. If the appellant elects to use a reporter’s transcript, the notice must designate the proceedings to be included in the transcript as required under rule 8.130.

(2) If an appellant intends to raise any issue that requires consideration of the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the superior court, the notice must also request that this administrative record be transmitted to the reviewing court under rule 8.123.

(c) Copy to the reviewing court

The clerk must promptly send the reviewing court a copy of any notice filed under this rule.

Rule 8.121 adopted effective January 1, 2008.

Advisory Committee Comment

The Judicial Council has adopted an optional form-Appellant’s Notice Designating Record on Appeal (form APP-003)-that can be used to provide the notice required by this rule.

This rule makes the filing of a notice designating the record an “act required to procure the record” within the meaning of rule 8.140(a). Under that rule, a failure to file such a notice triggers the clerk’s duty to issue a 15-day notice of default and thereby allows the appellant to cure the default in superior court.


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.