HOW TO GUIDE TO FILING AN APPEAL IN CALIFORNIA.

UNLIMITED CIVIL APPEALS

Copyright: NEWSandVIEWS

INTRODUCTION If a litigant is dealing with the judicial system in California, and the Superior Court system, that litigant is familiar with the fact that motions, pleadings and cases are routinely denied. The avenue for redress in the Superior Court is the Court of Appeal for that District. For example in San Bernardino and Riverside county, the responsible appeal court is the 4th District Division 2 court. Many litigants do not know how to to approach an appeal and what the relevant forms are. Although the judicial council provides guides they do not explain in detail the relevant steps that may be required. The general population in the State of California simply cannot afford an attorney to pay for an appeal, which is the only avenue of redress that litigants in this judicial system have. In order to start an appeal, first of all you have to have an appealable order. Case law is dynamic and evolving and what used to not be appealable a few years ago now is and vica versa. This guide is intended to provide a simple step by step break down of the appeal process to minimize some of the hassle and stress that litigants have to endure in order to obtain any assistance and to compliment the information that is available through the appeal court websites of your district. The hyper links contained in this documents link to the relevant forms and rules of court cited. It is not intended to serve as legal advice and litigants are strongly advised to consult an attorney before an appeal is filed. I. APPEAL PROCESS in UNLIMITED CIVIL CASES The appeal process is governed by California rules of court, specifically title eight rules, http://www.courts.ca.gov/cms/rules/index.cfm?title=eight which detail the rules and procedures required for each step in the appeal process. The first step in filing an appeal is to have an order that can be appealed. In civil cases which include family law cases and regular civil cases, a notice of appeal is filed in the Superior Court where your case has jurisdiction to notify the court and the other party that you intend to pursue an appeal. The entire process is called perfecting an appeal. The notice of appeal consist of an APP-002 form http://www.courts.ca.gov/documents/app002.pdf and specifies that you are filing an appeal from the order that was generated on x date. Litigants are often confused as to what boxes to check, with regard to why the order is appealable, as

specified on the form. The appeal court recognizes the party filing the appeal as the appellant, where the other party in the case is the respondent. The respondent once a notice of appeal has been filed has the opportunity to file a cross appeal. Appeals are generally governed by civil code of procedure 904.1 which specifies the following: (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. Appeals need to be filed timely. The general rule is that you can file your appeal 60 days from the time you were served with the order by mail, or 180 days after a final judgment. The notice of appeal needs to be served on the party like any other court document by a person over the age of 18 who is not a party to the case, i.e. by mailing it to the other party. The app-002 form has a proof of service page attached as page 2 which can be used or a regular proof of service can be substituted for it. In family law that would be the FL 335 form http://www.courts.ca.gov/documents/fl335.pdf and in other unlimited civil cases the POS-030 form (www.courtinfo.ca.gov/forms/fillable/pos030.pdf) serves as the proof of service by mail form. If you cannot pay for an appeal the court allows you to fill out a fee waiver, based on the FW-001 form, submitted to the court, www.courts.ca.gov/documents/fw001.pdf The court will either grant or deny your request depending on the information that is provided to the court. The form again has specific subsections that need to be filled out. The court of appeal will generate an appeal case number once they have received the notice of appeal from the superior court. Once the notice of appeal is filed you have ten days to file the notice designating your record on appeal, (form App-003 http://www.courts.ca.gov/documents/app003.pdf ). The notice is once again filed in the Superior Court where your case has jurisdiction and served in the same manner as the original notice of appeal by a person over the age of 18 who is not a party to the case, before you file the document in court.

The record on appeal consists of the clerk's transcript which is a document that condenses all of the trial court documents that you want to include in your appeal. This will serve as the record for your appeal and opening brief. Again you have the option of applying for a fee waiver if you cannot pay for the clerk's transcript on the same FW-001 form that is attached with your designation of records or if you already have a valid fee waiver on file with the court. The notice designating your record on appeal will ask you to answer several questions, including if you wish to use a clerk's transcript, appendix, an agreed statement, or a settled statement. All serve as a record of appeal. The form asks you if you want to use a transcript of proceedings. The transcript of proceedings is the oral record of proceedings, recorded by a court reporter in the form of an official transcript. A litigant can elect to proceed with a transcript of proceedings, may choose not to use one, or incorporate it in a different fashion by requesting that the court grant a motion to augment the appeal, (covered in the tips and tricks chapter below). Again if you cannot pay the court reporter, the court reporters board in California, has allowed pro per litigants to apply for assistance to pay for the transcript. However, their funding is limited and they provide funding to litigants until their funding runs out. The application to obtain assistance from the court reporters board can be obtained from the court reporter's website http://www.courtreportersboard.ca.gov/lawsregs/tran_pro_per.shtml and requires a valid court fee waiver with the application. A civil case information statement (APP-004 form; www.courts.ca.gov/documents/app004.pdf) is required by the Court of Appeal and is filed with the court of appeal, that handles your case. It basically provides the court of appeal with more information on the appeal. The statement requests information concerning the judgment that you are appealing from, when the judgment was served by the court and the parties to the appeal. The form requires that you attach the order that you are appealing and needs to be served on the other party by a person over the age of 18 who is not a party to the case. The court of appeal has its own optional proof of service form (APP-009 www.courts.ca.gov/documents/app009.pdf) or the appellant can provide their own. The court of appeal requires one copy and one original to file your documents. Conformed copies, (file stamped copy of filed documents), are provided if another copy is provided to the court for your own records. 5

Once these documents have been completed and processed the appeal clerk of the superior court is responsible for collecting the relevant record of appeal and certifying it to the court of appeal. A copy will be mailed to you as the appellant and to the respondent. The court of appeal will notify the appellant to provide the opening brief for the appeal, which is generally due 40 days from the date that the record of appeal has been filed in the appeal court. Once the opening brief has been filed, the respondent (the other party to the appeal) has 30 days to file their respondent's brief. Once the respondent's brief has been filed the appellant again has an opportunity to respond by filing a responsive brief due within 20 days from the respondent's brief.

a. FORMAT OF BRIEFS Each document again requires a specific format defined in title eight rules of court. The appellant's opening brief requires a green cover page, with the case name, case number, superior court number, the order that is being appealed and the name of the judge. The cover page also requires your name, address and phone number and if pro-per your designation as appellant pro per. The brief in general pursuant to title eight rules of court 8.204 requires the following at a minimum: (a) Contents (1)Each brief must: (A) Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited; (B)State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and (C)Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears. (2)An appellant's opening brief must:

(A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from; (B)State that the judgment appealed from is final, or explain why the order appealed from is appealable; and (C)Provide a summary of the significant facts limited to matters in the record. The length of the brief is confined to a approximately 14,000 words, with margins one inch at the top and one inch at the bottom and double spacing of lines. An example format is listed as attachment 1. The appeal court requires four copies and one original to be submitted, with proof of service to the trial court, (generally the appeals division of the Superior Court), the other party and the supreme court. The Supreme court allows electronic service of any opening briefs, on the following web site, http://www.courts.ca.gov/7423.htm in pdf format which saves paper and time. As of yet the court of appeal, although it allows electronic submission of opening briefs, still requires that litigants provide four paper copies and one original to the court. The respondent brief follows the same format although the cover page for the respondent's brief is yellow instead of green. Each appeal brief requires a certificate of interest. The court of appeal has an optional form to be used http://www.courts.ca.gov/documents/app008.pdf or it can be incorporated in the brief as detailed in attachment one.

b. WHAT TO DO IF YOU DON'T HAVE ENOUGH TIME? Generally the appeal court will grant a one time extension upon request by the party requesting the extension and form APP-006 serves as the extension request form (www.courts.ca.gov/documents/app006.pdf) . If you do not submit your opening brief (AOB) in time, the clerk will send a default notice which will still give you an extra 10-15 days time (depending upon the court of appeal). It is advisable to submit your request for extension during that time if you feel that you cannot complete your opening brief in time.

II. TIPS AND TRICKS. WHAT IF THERE ARE ADDITIONAL DOCUMENTS THAT YOU REQUIRE FOR YOUR APPEAL THAT ARE NOT INCLUDED IN THE RECORD ON APPEAL? Sometimes records that are relevant to the appeal are not included in the record on appeal. Only those records that have been filed in the Superior Court can be considered relevant. Any other documents that have not been filed; the court of appeal cannot consider as part of the record on appeal. However, when you require certain documents to be referenced in your opening brief and they have not been included, a litigant, can file a motion to augment the appeal or a request for judicial notice. A motion to augment the appeal provides an opportunity to attach the documents that you are requesting to be included as part of the record of appeal. A sample form has been included listed as attachment 2. Please note that the motion to augment needs to consecutively number the exhibits attached. For example, if the motion to augment consists of 3 pages, and exhibit 1, starts at the 4th page, then the designated page number for exhibit 1 is 4. The court of appeal requires one copy and one original of a motion with proof of service by a person over the age of 18 who is not a party to the case. A request for judicial notice generally provides an opportunity to drawing the court's attention to documents that you are requesting the court to recognize. Generally requests for judicial notice allow court documents, and transcripts to be incorporated.

WHAT TO DO IF YOU WANT TO INCORPORATE ADDITIONAL TRANSCRIPTS THAT ARE RELEVANT TO YOUR APPEAL. The Notice designating your record on appeal (APP-003), specifies whether you wish to include a reporter's transcript for the appeal. Sometimes through sheer oversight or through lack of funds a litigant did not allocate the relevant transcript. The transcript or transcripts, depending on what needs to be presented to the court of appeal, can still be incorporated as part of the record on appeal through a motion to augment the appeal, which can be filed at the time that the opening brief is due. This is often a quicker way to resolve an appeal than waiting for the court to notify the court reporter to prepare the transcript on appeal.

CONSOLIDATION OF APPEALS If you have more than one appeal which deals with the same issues, the appellant can request that the appeals be consolidated in order to avoid duplicate appeal records, save time and in the interest of judicial economy. A simple motion to consolidate listed as attachment 3, will request consolidation and needs to be served to the other party by a person overt the age of 18 who is not a party to the case. One copy and one original needs to be submitted to the court of appeal with proof of service attached.

OPINIONS Once the case has been fully briefed, (court of appeal language that all briefs relevant to the appeal have been provided), the court provides an opinion of its interpretation of the issues that were presented on appeal. Some court of appeals follow the tentative opinion format, where a tentative opinion which is not binding, is provided to the parties on appeal in order to provide an opportunity for oral argument. In this case, if a party does not agree with the tentative opinion, that party can request oral argument. At oral argument the court of appeal will allow the appellant a specific amount of time to present why the tentative opinion should not be issued as the final opinion. The respondent will have an opportunity to respond, with the appellant again having final say depending upon the time allocated. The opinion is issued by the court, after oral argument has been submitted. The opinion also referred to as the remittitur becomes final 30 days after the opinion has been filed.

WHAT TO DO AFTER REMITTITUR HAS BEEN ISSUED. If the remittitur has been issued and there are mistakes or oversight of relevant material that have not resolved the appeal, the appellate still has a few options left. Although there is only a very slim chance that the court of appeal will actually correct any mistakes or oversight, the appellant has the option of filing a petition for rehearing which is due 15 days after an opinion has been issued. The petition for rehearing follows the same format as the opening brief except that the cover page is orange and specifies the reasons for the petition for rehearing, ( http://www.courts.ca.gov/documents/SampleFormS.pdf). 9

The petition for rehearing is a required step if the appellant wished to proceed to the Supreme Court with a Petition for Review, to address the failure of the appeal court to resolve the issues. Unfortunately the Supreme Court only addresses a handful of cases and routinely denies petitions for review. If the petition for rehearing is denied, and the remittitur becomes final, another option is a motion to recall the remittitur. The motion follows the same format as all other motions, with one copy and one original to be submitted to the court of appeal.

10

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA ______ APPELLATE DISTRICT, DIVISON ____ ____________________________ (NAME OF APPELLANT), Plaintiffs and Appellants, vs. (NAME OF RESPONDENT) Defendants and Respondents. __________________________ Appeal from the Judgment of the (NAME OF SUPERIOR COURT) of California County of (NAME OF COUNTY) Honorable (NAME OF JUDGE) Presiding Superior Court Case No. (CASE NUMBER) DCA (CASE NUMBER) APPELLANTS OPENING BRIEF __________________________________________ NAME OF ATORNEY OR PRO PER LITIGANT (ADDRESS) Telephone: _________ Facsimile: __________

ATTACHMENT One (COVER PAGE OF AOB)

11

TABLE OF CONTENTS Certificate of Interest Table of Contents Table of Authorities INTRODUCTION AND STATEMENT OF THE CASE NATURE OF THE ACTION AND RELIEF SOUGHT FACTUAL AND PROCEDURAL HISTORY STATEMENT OF APPEALABILITY ISSUE ON APPEAL STANDARD OF REVIEW ARGUMENT ISSUE 1 ISSUE 2 CONCLUSION CERTIFICATE OF WORD COUNT

Pg

Pg number of AOB ATTACHMENT One (TABLE OF CONTENTS FOR AOB). 12

CERTIFICATE OF INTEREST Pursuant to California Rules of Court 8.208 Appellant declares that there are no interested parties or entities to this appeal. Appellant declares under the penalty of perjury in the State of California that the foregoing is true and correct. NAME OF APPELLANT Appellant DATE

(Pg number of AOB) ATTACHMENT One, (CERTIFICATE OF INTEREST INCORPORATED IN AOB). 13

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA _____ APPELLATE DISTRICT, DIVISON _____ (NAME OF APPELLANT), Respondent and Appellant, vs. (NAME OF RESPONDENT), Plaintiff and Respondent

DCA No. (COURT OF APPEAL NO) (NAME OF SUPERIOR COURT) (SUPERIOR COURT CASE NO)

REQUEST FOR JUDICIAL NOTICE/MOTION TO AUGMENT APPEAL Appeal from Orders of the Superior Court of California County of (INSERT NAME OF COUNTY) NAME OF JUDGE; Order of (DATE); SUPERIOR COURT CASE NUMBER DISTRICT COURT OF APPEAL CASE NUMBER NAME ADDRESS PHONE NUMBER

ATTACHMENT Two (MOTION TO AUGMENT COVER PAGE)

TO THE HONORABLE PRESIDING JUSTICES, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, ___ APPELLATE DISTRICT. Pursuant to rule 8.252 of the California Rules of Court, and to Evidence Code sections 452 and 459, appellant requests this court to take judicial notice of the following documents and transcripts which were the subject of appellant's (LIST MOTIONS) and the hearing dated (INSERT DATE) in case (LIST SUPERIOR COURT CASE NUMBER). The documents that Appellant is requesting to be judicially noticed are: NAME OF DOCUMEN, attached as exhibit 1. NAME OF DOCUMENT, attached as exhibit 2. Certified Reporter's Transcript of hearing of (DATE OF HEARING), attached as exhibit 3. This request for judicial notice or motion to augment the appeal is based on the following points and authorities. Dated: _____ ____________________ Appellant

ATTACHMENT Two (continued)

ARGUMENT 1. THE COURT SHOULD GRANT JUDICIAL NOTICE OF THE DOCUMENTS SPECIFIED, AS THEY ALL RELATE TO THE DENIED RESTRAINING ORDER. Taken together, Evidence Code Section 452, subdivision (d) and 459, subdivision (a) provides that a reviewing court may take judicial notice of the records of .. any court of this state The primary question in deciding whether to take judicial notice is whether the information sought to be judicially noticed is reasonably subject to dispute. Where that information is not reasonably subject to dispute, judicial notice is entirely proper oven over objection of one of the parties, (People v. Hill (1998) 17 Cal. 4Th 800, n. 9; People V. Wiley (1995) 9 Cal. 4Th 580, 594). Here the transcripts and documents sought to be noticed is not disputable. Indeed, they are verbatim transcripts of arguments made and documents filed in the superior court in case (INSERT CASE NUMBER) that are relevant and referenced in Appellant's appeal. Judicial notice is appropriate, (People v. Hoover (1987) 186 Cal. App. 3D 1074, 1082) (reviewing court takes judicial notice of transcripts of co-appellant's trial in order to evaluate Due process claim of inconsistent arguments); accord County of San Diego vs. State (1997) 15 Cal. 4Th 68, 83; Estate of Castiglioni (1995) 40 Cal. App. 4Th 367, 370. Appellant has a duty to raise all arguable issues before this court, (In re Smith (1970) 3 Cal.3d 192.). Appellant has reviewed the record and has determined that inclusion of the requested material is necessary for the effective representation of appellant. (People v. Gaston (1978) 20 Cal.3d 476; People v. Silva (1978) 20 Cal.3d 498.) 2. THE COURT SHOULD GRANT APPELLANT'S REQUEST TO AUGMENT THE APPEAL IN THE EVENT THAT HER REQUEST FOR JUDICIAL NOTICE IS DENIED. Pursuant to CA rules of Court 8.155 (a) (1) Appellant petitions this Court to include the referenced and attached documents, that were not included in the Clerk's transcript but have been referenced in Appellant's Opening Brief filed with this court. ATTACHMENT Two (continued)

Appellant referenced the documents sought to be judicially noticed in her appeal and has a duty to raise all arguable issues before this court, (In re Smith (1970) 3 Cal.3d 192.). Appellant has reviewed the record and has determined that inclusion of the requested material is necessary for the effective representation of appellant, (People v. Gaston (1978) 20 Cal.3d 476; People v. Silva (1978) 20 Cal.3d 498) and to demonstrate the due process violations of the trial court. CONCLUSION Appellant respectfully requests this court to her Request for Judicial Notice. Appellant in the alternative if the request for judicial notice is denied requests this to Court to grant her motion to augment the record on appeal. Appellant declares under the penalty of perjury in the State of California that the foregoing is true and correct and that documents attached are true and correct copies of documents filed in the trial court and certified transcripts of the testimony presented to the trial court. Dated _____________ Respectfully Submitted NAME OF APPELLANT

ATTACHMENT Two CONTINUED.

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA _______APPELLATE DISTRICT, DIVISON ______ (NAME of APPELLANT), Respondent and Appellant, vs. (NAME OF RESPONDENT) Plaintiff and Respondent

DCA No. (APPEAL CASE NO) (SUPERIOR COURT NAME) SUPERIOR COURT CASE NO Related Appeal (NUMBER TO BE CONSOLIDATED)

MOTION TO CONSOLIDATE APPEAL CASE (INSERT CASE NO) with RELATED APPEAL CASE (INSERT CASE NO) Appeal from Orders of the Superior Court of California County of (NAME OF COUNTY) NAME OF JUDGE, DATE OF ORDER AND SUPERIOR COURT CASE NO. Related appeal (INSERT CASE NO), Order of (DATE), SUPERIOR COURT CASE NO. NAME OF LITIGANT OR ATTORNEY ADDRESS PHONE NUMBER

ATTACHMENT Three (MOTION TO CONSOLIDATE COVER PAGE)

TO THE HONORABLE PRESIDING JUSTICES, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, ____ APPELLATE DISTRICT. Appellant is the petitioner in the above captioned related matters before this court and moves this court for an order consolidating the two matters for purposes of briefing, oral argument and decision. This motion is made on the grounds that the evidence and the legal questions presented by both matters are so related as to make it advisable to consolidate them. This motion is based on the memorandum of points and authorities accompanying this motion. Respectfully submitted, (INSERT NAME) Appellant

ATTACHMENT Three CONTINUED

MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF THE CASE (INSERT BRIEF DESCRIPTION OF THE STATEMENT OF THE CASE). II. CONSOLIDATION IS NECESSARY TO CONSIDER MATTERS WHICH CONCERN ISSUES ARISING FROM THE SAME ORDERS AND ISSUES AND WHICH HAVE OVERLAPPING APPELLATE RECORDS. The standard test for consolidation on appeal is whether the cases to be consolidated share at least one common issue, Pacific Legal Foundation v. California Coastal Commission, 33 Cal. 3D 158, 165 (1982). This is a factual question which requires consideration of whether the questions presented are so related as to make it advisable to consolidate .. Sampson v. Sapoznik, 117 Cal. App. 2D 607, 609 (1953). There is no question here that the standard has been met for the following reasons: (SPECIFY THE REASONS FOR CONSOLIDATION) CONCLUSION For the reasons stated above, appellant petitions this court to consolidate appeal (NO OF APPEAL TO BE CONSOLIDATED) with this appeal. Appellant declares under the penalty of perjury in the State of California that the foregoing is true and correct. Respectfully submitted, (INSERT NAME OF APPELLANT) Appellant. ATTACHMENT Three CONTINUED