The basics of California Appeals — two not-so-simple rules (Part 5)

The basics of California Appeals — two not-so-simple rules: Filing a timely notice of appeal and designating a proper record

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By Jeffrey I. Ehrlich, 2010 | Download .doc

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B. Designating the Record on Appeal

1. The mechanics

Rule 8.121 (a) requires the appellant to file in the trial court a designation of the record on appeal within 10 days of filing a notice of appeal (although the designation can be combined with the notice of appeal). The rule contemplates a single document designating both the oral proceedings and the documents, usually the RT and a CT or Appendix. There is a Judicial Council form, APP 003, which is optional.

The notice designating the record must state when the appeal was filed, the form of the record of Superior Court documents (CT or Appendix), and the form of the oral proceedings (RT). If the appellant uses an RT, the designation must designate what proceedings it will contain. Rule 8.130(a)(1) requires that the notice specify the date of each proceeding to be included in the RT. Hence it is improper to designate “all oral proceedings”. A local rule in the Second Appellate District requires even more specificity — L.R. 3(a)(1) requires not only the date of each proceeding, but also the department, the name of the court reporter or electronic-recording monitor, and the nature of the proceeding.

The designation may specify the portions of designated proceedings that should not be transcribed. (Such as voire dire, or specific witnesses whose testimony was not relevant to the issues raised on appeal.) But if not all testimony will be designated, the notice must specify the points to be raised on appeal. (Rule 8.130(a)(2).) This enables the respondent to determine whether additional parts of the record must be transcribed. Designating less than all testimony limits the scope of appellate review to the points stated in the designation notice. (Rule 8.130(a)(2).) Copies of the notice of designation must be served on all other parties, and on all known court reporters.

If the appellant designates only part of the oral proceedings, then the respondent may file a notice of designation of additional proceedings within 10 days of service of the appellant’s designation. (Rule 8.130(a)(3).)

The designating party (that is, both the appellant and the respondent making a designation of additional proceedings) must make at the time the designation is filed a deposit for the approximate cost of transcribing the designated proceedings. There are two ways to compute this: (1) obtain a written estimate from the court reporter in advance, or (2) using the amounts specified in Rule 8.130(b)(1)(A) and (B): $325 for each proceeding of less than 3 hours, and $625 for each proceeding longer than 3 hours.

If the appellant files a notice electing to proceed via a Clerk’s Transcript, the respondent can trump that election by filing an election to use an appendix in lieu of the Clerk’s Transcript within ten days of the appellant’s election. (Rule 8.124.) At that point, the appeal will proceed using an appendix unless the Superior Court orders otherwise on a motion to oppose the election. (Id.)

If the appellate elects to use a Clerk’s Transcript, the election must designate the items to be included, specifically identifying each document by title and filing date. (Rule 8.122(a)(1).) It is sufficient to collectively designate all minute orders or all jury instructions given, refused, or withdrawn. (Rule 8.122(a)(1).) The designation may also specify parts of a document that need not be included — which can be handy if there are duplicates of other documents.) (Id.)
Optional documents in a Clerk’s Transcript or an Appendix include any document filed or lodged in the case in the Superior Court; any exhibit admitted in evidence, refused or lodged; any jury instructions submitted by a party or given or refused. (8.122(b)(3).)

2. Judgment calls — what should you include?

You must include everything necessary for the appellate court to understand what occurred in the trial court, and to evaluate whether it constituted an error, and whether that error was prejudicial. As the appellant, if you fail to provide the appellate court with this information, you will lose the appeal. You should not, however, burden the court with more than it needs to do its work properly. In extreme circumstances, lawyers who thoughtless include more in the record than properly belongs there can be subject to sanctions. (Rule 8.276(a)(2).)

The rules specify certain items that must be included in every Clerk’s Transcript, whether designated or not, and which must therefore also be included in any appendix in lieu of a clerk’s transcript. These include the notice of appeal; the order or judgment appealed from and any notice of its entry; any notice of intention to move for new trial, JNOV, or reconsideration of an appealable order, together with their supporting and opposing memorandum and exhibits, and any order thereon; notices or stipulations concerning preparation of the reporter’s transcript; and the register of actions, if there is one. (Rule 8.122(b)(1); 8.124(b)(1)(A).)

If your appeal follows the trial court granting a demurrer or a summary-judgment motion, deciding what to include in the record is easy — you put in the operative pleadings, all documents filed by the parties in support of, or opposition to, the motion or demurrer, and the order resolving the motion or demurrer. If the appeal follows a jury trial, it can be harder to decide what to include. Although all exhibits are automatically part of the record, it makes sense to include the key exhibits in the CT or Appendix so the court has ready access to them. All minute orders entered during the trial are also a good idea, because they show what happened each day, and sometimes may be the only evidence of orders the court made.

Many lawyers automatically include an RT of law-and-motion hearings, but I do not recommend this unless something happened at the hearing that has particular significance to the appeal — such as a lawyer making a concession on the record, or the trial court making a particularly intemperate comment that is indicative of bias. Appellate courts do not review a trial court’s reasoning, only the correctness of its decision. In almost all cases, nothing that happens in a law-and-motion hearing has any bearing on the appeal because the court will simply look at the motion and the evidence in support and in opposition, and decide whether it was properly granted given the appropriate standard of review.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.

He also edits that magazine’s issues on insurance and on law-and-motion and appeals. He has also authored articles on appellate and law-and-motion practice; on oral argument; and on substantive legal topics, such as insurance, arbitration, patient rights, and federal preemption of state law under ERISA, Medicare, and the Federal Arbitration Act.

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