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procedural comparison chart: third vs. fifth

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A B C D E F H J L M N O P S T U W

 

Third District Policies Fifth District Policies

A

Abandonment = Entitle it: "Notice of Abandonment and Request for Dismissal"

Appointed counsel may sign the request to abandon. (Rules of Court, rule 8.316(a).) [Policy change: 10/20/15] The original signature must be retained in counsel's physical file. (Rules of Court, rule 8.77(a) [documents e-filed require retention of a signed document].)

This court requires moving papers to "request dismissal." CCAP's motion sample meets this requirement.

Consultation with the CCAP buddy is required by all counsel (assist and independent appointments) prior to filing the notice of abandonment and request for dismissal.

Abandonment = Electronic signature

Appointed counsel may sign the request to abandon. (Rules of Court, rule 8.316(a).) The original signature must be retained in counsel's physical file. (Rules of Court, rule 8.77(a) [documents e-filed require retention of a signed document].)

The Fifth District no longer requires specific declaration language.

Consultation with the CCAP buddy is required by all counsel (assist and independent appointments) prior to filing the notice of abandonment and request for dismissal.

See a sample: Motion to Abandon

Appointment Status on Brief Covers

For appointed cases, the Third asks counsel to include their appointment status in the lower right-hand corner of the brief cover: "By Appointment of the Third District Court of Appeal under the Central California Appellate Program Assisted [or Independent] Case System."

Appointment Status on Brief Covers

The Fifth's policy is the same.

For appointed cases, the Fifth asks counsel to include their appointment status in the lower right-hand corner of the brief cover: "By Appointment of the Fifth District Court of Appeal under the Central California Appellate Program Assisted [or Independent] Case System."

See a sample brief cover: Sample Brief (PDF)

Argument Headings

The Third District Court of Appeal has held that a distinct argument must be placed under a separate argument heading or subheading to present the point. (Cal. Rules of Court, rule 8.204(a)(1)(B).) The court will find an argument not meeting this requirement is procedurally defaulted due to counsel’s presentation of the contention in a “perfunctory fashion.” A Third District case so holding is Opdyk v. California Horse Racing Board (1994) 34 Cal.App.4th 1826, 1830-1831, fn.4.)

A second waiver result that we see is an argument defaulted because it is not supported by citation to the record or authority. (People v. Dougherty (1981) 138 Cal.App.3d 278, 282-283.) Authority means other than a general allusion to a broad constitutional provision. For example, a contention that an error invokes constitutional concerns must be developed by showing how the error violates the defendant’s constitutional rights, or the argument may be defaulted. (People v. Kelly (1999) 72 Cal.App.4th 842, 847, fn. 3.)

Finally, don’t forget to include a specific citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)

Argument Headings

The Fifth District’s policy is the same as in the Third District.

Associate counsel time-logs

An associate counsel hours attachment page must be submitted with the claim. It should include associate counsel’s name and State Bar number, the date the task was performed, the corresponding claim line item number, a brief description of the task, the associate counsel hours spent on the task, and any comments.

Associate counsel time-logs

The Fifth District’s policy is the same as in the Third District.

See a sample: Associate Counsel Log form (PDF)

For statewide policy on using Associate Counsel Policy, look under "U" for "Use of Associate Counsel."

Attorney information on filings

The Third District clerks enforce rule 8.204(b)(10)(D) which requires that the attorney's name, address, telephone number and state bar number must appear on the cover page (or the first page). This applies to all filings. The court's preference is to have the information all in the upper left hand corner of the first page (except on briefs), because it makes it easier for the court staff and justices to quickly find the information.

Attorney information on filings

The Fifth District has not issued a directive on this item.

For timing on Augments and EOTs, look under "E" for "EOT format and filing procedures."

Augments versus rule 8.340(b)filings – requesting supplemental record

If the record is incomplete, the Third expects a motion to augment be filed before an EOT is filed. (See appointment order.)

The Third will automatically toll the due date of an opening brief or a respondent's brief upon receiving notification pursuant to rule 8.340(a) or a letter pursuant to rule 8.340(b), if those due dates are pending. No separate extension of time request is necessary. CAVEATS: When the material to be included in the record is attached to the motion to augment (rule 8.155(a)(2)), the opening brief filing deadline might not be tolled because counsel already possesses the record. In this instance, it is recommended that counsel confirm their deadline with the court clerk. And, if the appellant's reply brief is currently due, this does not toll the brief due date. The reply brief is not a mandatory brief. Counsel should file a request for extension of time if the reply brief will not be timely filed. The Third will exercise its discretion whether to grant or deny the extension request.

NEW: Concurrent applications for both MTA and 8.340(b) items, may not be combined into one motion to augment. Instead, the MTA should be filed directly in the Court of Appeal (rule 8.340(c)); the supplemental record request for omission of normal record items should be filed in the superior court (rule 8.340(b)).

Send a 8.340(b) directly to the trial court clerk's office, not the judge.

The court requires only one copy of material attached to a motion to augment. It is handled in the same manner as the record on appeal: one copy.

When you want a record from the prior appeal as part of the record for the present appeal, rather than a "judicial notice" or "motion to augment," instead try a request for "incorporation by reference." (See Rule 8.147(b).)

Do not use "covers" for a motion filed in the Third.

Augments versus rule 8.340(b) filings – requesting supplemental record

If the record is incomplete, the Fifth expects a motion to augment be filed before an EOT is filed. Appointed counsel must meet the augment deadline set in the appointment order. If counsel cannot do so, an explanation is required when the augment motion or an initial EOT is filed. Press of business is not an acceptable reason.

The Fifth will automatically toll the due date of an opening brief upon receiving notification pursuant to rule 8.340(a) or a letter pursuant to rule 8.340(b), if those due dates are pending. No separate extension of time request is necessary. CAVEATS: When the material to be included in the record is attached to the motion to augment (rule 8.155(a)(2)), the opening brief filing deadline might not be tolled because counsel already possesses the record. In this instance, it is recommended that counsel confirm their deadline with the court clerk. And, if either the respondent's brief or appellant's reply brief is currently due, this does not toll the due date for those briefs – counsel should file a request for extension of time if they will not be able to timely file the brief.

If counsel will be filing for concurrent MTA and 8.340(b) application items, the items may be combined into one Motion to Augment, filed in the Court of Appeal.

No order is required to accompany an augment request.

Do not use "covers" for a motion filed in the Fifth.

Special rule on juvenile cases.
Spotted in a recent Fifth District order on a dependency case, where counsel just happened to find something in the superior court file: "When[ever] counsel has the opportunity to review a juvenile dependency superior court file and discovers missing material which counsel believes should be part of the appellate record, counsel is urged to proceed as follows. If at all possible, counsel should obtain a certified copy of such material and submit it to this court, along with a motion to deem the material part of the appellate record. [See Cal. Rules of Court, rules 8.155(a)(1)(A) and (a)(2).] In this manner, delay in a priority appeal . . . may be avoided in the future."

For article on Augmentation, see "The Appellate Record Checklist (Article)"

For Worksheet, see "Augment Checklist Worksheet (pdf)"

Augmentation with multiple defendants

Counsel should not file a joinder motion when a co-appellant files an augment motion. Not only will all parties automatically receive copies of a co-appellant's augmented record, but also they will automatically receive a suspended due date for their brief

Augmentation with multiple defendants

Although all counsel will automatically receive a copy of a co-appellant's augmented record, counsel is required to file a joinder motion to a co-appellant's motion to extend their own due date pending augmentation.

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Binding briefs

The Appellate Indigent Defense Oversight Advisory Committee (AIDOAC) has directed that, for purposes of reimbursement of expenses, service copies of briefs and petitions normally should be stapled rather than bound. Copies filed in or served on the Court of Appeal or Supreme Court must still be bound, as required by the Rules of Court. (Rules 8.204(b)(8) [brief in Court of Appeal], 8.504(a) [petition for review], 8.520(b)(1) [Supreme Court brief on the merits], 8.360(a) [criminal brief], 8.412(a) [juvenile brief], 8.490(a)(1) [writ petition], 8.384(b)(1) [habeas corpus petition], and any rules incorporating those by reference.)

All service copies of a brief or petition (except the copies filed with the court) should simply be stapled; one staple is sufficient, and it need not be taped over.

See Local Rates for binding expenses.

Binding briefs

The AIDOAC directive stated for the Third District also applies in the Fifth.

See Local Rates for binding expenses.

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Captions - What's in a name?

In the Third District, for all cases, the clerks ask that counsel use only the court-designated caption for any filing (received, stamped or lodged) in their court. All counsel are expected to follow and use the court-designated caption, including the use of initials-only where appropriate for minors and parents.

If appointed counsel have a question about whether the caption received from CCAP is correct or not, it can checked against the court's online docket (external link) "Parties & Attorneys" entry.

In order to protect the anonymity of juveniles, this Court has now adopted the designation of parties in any juvenile proceeding by using initials only in place of first and last names. Thus, for all dependency and delinquency cases, the parties (and even non-parties) are identified by initials only, including the parent of a minor.

This Court considers the last name for any minor a matter of confidentiality. Both CCAP and the Court regard this remiss as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.

See more below under M for Minor's Names.

Captions - What's in a name?

In the Fifth District, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child. This Court considers the last name for any minor a matter of confidentiality. Both CCAP and the Court regard this remiss as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.

However, appointed counsel should always check whether the appointment-order caption received from CCAP is correct by checking it against the court's online docket (external link) "Parties & Attorneys" entry.

See more below under M for Minor's Names..

Cert. petitions

Compensation for cert. petition work requires an expansion of appointment and preauthorization from the court for all related expenses. Submit your written request and all court copies to CCAP for our input and recommendation to the court.

Cert. petitions

Compensation for cert. petition work requires an expansion of appointment and preauthorization from the court for all related expenses. Submit your written request and copies directly to the court.

Citations in the body of the brief

The Third District justices prefer citations in the body of the brief, not in the footnotes. The Third District clerk will review the brief for appropriate citations to the record. If there are not sufficient citations in the body, the brief will be returned to counsel prior to filing for addition of appropriate citations.

Citations in the body of the brief

The Fifth District clerk will send a letter to counsel advising that the justices prefer case citations in the body of the brief, not in footnotes.

Citing additional authority for oral argument

Before oral argument counsel should furnish the clerk with a list of citations (original + 4 copies) of any decision rendered after preparation of the briefs which will be cited by the name of the attorney submitting the citations. It may not include arguments or explanations. Formal proof of service is required unless presented at the time of oral argument. If presented at oral argument, please hand them to the courtroom clerk together with your business card.

Citing additional authority for oral argument

Counsel may submit not only a list of additional cites, but also should discuss the holding for the case and state which contention or argument that it applies to.

Consolidating appeals

A motion to consolidate appeals does not toll the AOB due date for either court.

Consolidating appeals

The Fifth District’s policy is the same as in the Third District.

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Dependency Statements in Briefs

Either separate or combined statements may be used in dependency briefing, as long as the statements are limited to the facts pertinent to the appeal. (Policy updated 4/20/15)

Dependency Statements in Briefs

This court prefers the use of combined statements in dependency briefs. (Policy updated 4/20/15)

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E-Filing

The Third District will now accept first-time only EOTs via e-filing on their website e-filing portal (external link). No additional paper copies required when e-filing.

Counsel must still provide paper service copies to the appropriate parties, including CCAP, unless the party will accept e-service.

(Note no e-service to CCAP (yet): CCAP does not yet accept e-service of documents from panel members. At this time CCAP still requires appointed counsel to serve paper copies of all documents traditionally required to be sent to us. A pilot project for e-service strictly between CCAP and the Attorney General’s office is underway.) CCAP will accept e-service in Third DCA cases once TrueFiling launches in the court (see below).

ALERT: The Third DCA will require attorneys to comply with mandatory e-filing in all case types beginning September 14, 2015. Attorneys will e-file documents using TrueFiling, an e-filing portal developed by ImageSoft, Inc. Optional e-filing through the TrueFiling system may begin as early as August 24, 2015.

The Third DCA has published Local Rule 5 (external link to PDF) governing electronic filing. The effective date of Local Rule 5 is September 14, 2015.

More informaiton is available on the court's website here (external link).

E-Filing

The Fifth DCA has implemented mandatory electronic e-filing via TrueFiling for all documents. Please read Local Rule 8 (external link), which addresses e-filing in the Fifth DCA. The court has also issued Formatting Guidelines for electronic filing, which are availble on the court's website here (external link to PDF).

More information about e-filing via TrueFiling in the Fifth DCA and additional resources are available in the TrueFiling section of CCAP's website.

EOT format and filing requirements

The Third District prefers EOT requests filed using the form provided. The court will not accept an EOT for extending time to make a motion to augment; a late augment motion should include the reasons for the late filing (other than press-of-business reasons). Counsel must comply with rule 8.204(b)(10)(D) when filing this and other motions in the Third. If additional pages need to be attached, use 8.5" x 11", unnumbered lines, with the case caption at the top.

For paper copies, rule 8.44(b)(7) requires both an original and a copy for the court; in addition, one copy for each separately represented and unrepresented party must be provided. Include a pre-addressed postage-paid envelope for yourself (rule 8.50(c)) and one for each party's appellate counsel or unrepresented party. (Exceptions: for the A.G. and CCAP there is a court-run drop box so envelopes are not required.)

For eFiled extensions, no paper copies or envelopes are requied.

Signature line for the court: If not using the form, include "It is so ordered_____" at the bottom of a full page or at least a half-full page (i.e., the court will not sign a blank page that could be removed and separated from the motion). Do not add any additional unique wording to the "It is so ordered" line (eg., "It is so ordered until ___" is not helpful).

Important: Neither court allows rule 8.360(c)(5) [formerly known as 17(a) time] as a “grace period” for filing the opening brief. If counsel cannot file the brief by the court’s deadline, an extension of time (EOT) should be filed. See "Don't Use 8.360(c)(5) Time!" discussion in CCAP article: Extensions of Time. This is also true for dependency cases. (Rule 8.416(g).)

Tip for both courts: Don't select a weekend, court-furlough or holiday date as a new due date in your extension of time request! Always check the calendar first. See also our court closure page.

See CCAP's article on Extensions of Time for more tips.

EOT format and filing requirements

Counsel may now file EOT requests in the Fifth District using the court's new fillable PDF form (external link). Previously, the Fifth District required a formal application for extension of time requests.

Court service copies for all parties must include pre-addressed postage-paid envelopes (rule 8.50(c)), except for the Attorney General.

Download: EOT PDF form for the Fifth (external link)

The Fifth's appointment order often states that any motion to augment the appellate record is to be filed within 30 days from the date of that order and "thereafter, motions to augment may not be granted without a showing of good cause for the delay." Appointed counsel are expected to know this court's procedure and provide an explanation for why the EOT request precedes the augmentation request. "Press of business" is not sufficient good cause. (See below.)

Important: Neither court allows rule 8.360(c)(5) [formerly known as 17(a) time] as a “grace period” for filing the opening brief. If counsel cannot file the brief by the court’s deadline, an extension of time (EOT) should be filed. See "Don't Use 8.360(c)(5) Time!" discussion in CCAP article: Extensions of Time. This is also true for dependency cases. (Rule 8.416(g).)

For both courts, "press of business" reasons (such as other case work), is not sufficient for an extension request. State what work has been accomplished on this case to date and ask for a full 30-day allotment (don't short yourself). Finally, if counsel states they will file the brief in the next 30 days, either meet that promise, or be prepared to explain unusual circumstances in the next EOT.

See CCAP's article on Extensions of Time for more tips.

Errata Letter or Motion to Correct a Brief?

An errata letter may be used to correct a few or minor typographical errors.  If there are substantive or substantial changes to a brief, however, counsel may file a motion to file a corrected brief/withdraw brief and file a substitute brief.  Counsel may attach the substitute brief with the motion to file the corrected brief. If there are more than 10 changes, move to file a corrected brief.

Use the same service requirements set forth in the Rules of Court for service briefs.

Errata Letter or Motion to Correct a Brief?

An errata letter may be used to correct a few or minor typographical errors by interlineation or by a replacement page or pages.  This court does not requirement the entire brief to be replaced if the solution is minor. If the errata is too excessive, the corrections are routed to the court's writs and motions department for review.

Use the same service requirements set forth in the Rules of Court for service briefs.

See a sample: ErratA Letter (pdf)

Exhibits - Tabs

This court has a preference for exhibit tabs on the right, not on the bottom, for bound exhibits.

Exhibits - Tabs

This court has a preference for exhibit tabs on the right, not on the bottom, for bound exhibits.

Exhibits - Transmit for Counsel to View

A motion to transmit exhibits to the Third must be filed with the trial court. File a separate motion with the Third to transmit the exhibits to another Court of Appeal for convenient viewing by counsel.

Exhibits - Transmit for Counsel to View

There are two options available: 1) File a motion to augment the record with a clerk's transcript(s) of the exhibits, or if the exhibits cannot be made into a clerk's transcript; 2) File a motion with the court to have the exhibits transferred to another Court of Appeal and the court will prepare an order allowing this and giving counsel a limited amount of time to view them.

Expansion Requests

In both the Third and Fifth District Courts of Appeal, appointed counsel must move to expand the appointment to seek compensation for all writ petition work, including habeas corpus, mandamus, and certiorari, as well as other work outside of the scope of the appointment, such as an appearance and motion work in the trial court with limited exceptions. Simply stated, you will not be paid for work done outside of direct appeal without advance written approval from the courts in these two districts. This is one of the biggest differences between our courts and other courts/projects and may lead to some confusion.

Step1: Read and understand the court's policies & the limited role of the project: expanding your appointment

Step 2: Read and understand when you need to expand and what elements to include in your request: preauthorization procedures & steps

Where to send it: For the Third, submit your request to CCAP first for project input and a recommendation to the court.

Reminder: An application to expand appointment is a compensation matter and does not require service on the Attorney General. Serve your request only on your client and CCAP.

Expansion Requests

Same as the Third, except:

Where to send it: For the Fifth, submit your written request directly to the court.

Reminder: An application to expand appointment is a compensation matter and does not require service on the Attorney General. Serve your request only on your client and CCAP.

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Filings utilizing rule 8.25(b)(3) – express or priority mail or overnight delivery carrier

If counsel relies on rule 8.25(b)(3) by sending the brief on or before the due date by OVERNIGHT mail, it is NOT necessary to call the clerk. But if the brief is sent by EXPRESS mail or PRIORITY mail (neither of which guarantees next day delivery), the attorney should call the clerk to advise that the brief has been mailed in compliance with the rule.

Filings utilizing rule 8.25(b)(3) – express or priority mail or overnight delivery carrier

Counsel who file briefs for Fifth District cases on or near the deadline should give the clerk assigned to the case a courtesy telephone call to say that the brief is on its way pursuant to rule 8.25(b)(3).

It is also good practice to make such a call to the Fifth District clerk's office when submitting an extension request or augmentation request on or near the due date for the brief even though rule 8.25(b)(3) does not apply to those filings.

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Habeas

Compensation for habeas and all other extraordinary writ work (beyond cursory inquiries with the client and/or trial attorney) requires an expansion of appointment and preauthorization from the court for all related expenses.

Submit your written request and copies to CCAP for project input and recommendation to the court.

Habeas

Compensation for habeas and all other extraordinary writ work (beyond cursory inquiries with the client and/or trial attorney) requires an expansion of appointment and preauthorization from the court for all related expenses.

Submit your written request and copies directly to the court.

See Billing Habeas & expenses memo (PDF)

In the past, rules for billing habeas-related work may have been different or articulated in confusing or contradictory ways. We apologize for that. The requirements from the AOC have changed as the AOC has perceived and reassessed its own requirements. It is important for all counsel to understand where to bill habeas-related work, even if a habeas petition is never filed.

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Joinder in briefing

A joinder notice is required to join in a co-appellant’s argument. The notice should cite to rule 8.200(a)(5), direct the court’s attention to how the argument fits appellant’s own case, cite any additional supporting record, and include any additional persuasive argument and authorities.

CCAP Tip: If your appellant's brief has already been filed and you seek to join a later filed co-appellant's argument, the rule 8.200(a)(5) notice can still be filed but the clerk will treat it as a "late" application to join. The application will be submitted to the court for a discretionary ruling.

Joinder in briefing

The Fifth District’s policy is the same as in the Third District.

Judicial Notice

It is recommended that you obtain a ruling on this motion before filing the opening brief, rather than filing these simultaneously.

Also, it is not necessary to augment the record with judicially noticed materials. Once the court grants the motion, the materials become part of the appellate record.

When you want a record from the prior appeal as part of the record for the present appeal, rather than a "judicial notice" or "motion to augment," instead try a request for "incorporation by reference." (See Rule 8.147(b).)

In the Third District, counsel does not need to include a proposed order as this court issues its own order.

Judicial Notice

It is recommended that you obtain a ruling on this motion before filing the opening brief, rather than filing these simultaneously.

Juror information – unredacted record

When counsel discovers unredacted personal juror-identity information in the record, counsel should notify the court clerk by letter (with service copies) immediately.

This requirement applies to information about trial jurors and alternates who were sworn to hear the case. Identifying information pertaining to potential jurors who were not sworn need not be redacted from the record. (See Rule 8.332(b) and (c).)

Juror information – unredacted record

The Fifth's policy is the same.

The Fifth District issued a formal policy concerning the redaction of juror information in record in February 2003. The policy states that appointed counsel must notify the Court of Appeal immediately upon counsel's discovery of the presence in the record of any unredacted personal juror identifying information. The court will then issue a corrective order, depending on the amount of redaction needed and whether the court has completed its review of the record.

Read the Fifth District’s Formal Policy, dated Feb. 2003.

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Legal Mail: This is a CDCR matter, not a court policy. See "Legal Mail Pitfalls"

Letter briefs

In the Third District, letter briefs are not acceptable in place of any brief unless the court has requested supplemental briefing and the order specifically permits it to be in letter format.

Letter briefs

Counsel should request permission from the court before filing a letter brief or informal brief. (See Cal. Rules of Court, rule 8.204(e) [noncomplying briefs].)

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Mandate petition

Compensation for a writ of mandate and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court for all related expenses. Submit your written request and copies to CCAP for our input and recommendation to the court.

Mandate petition

Compensation for a writ of mandate and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court. Submit your written request and copies directly to the court. The Fifth District also requires that all petitions, other than habeas, be submitted with a completed coversheet called, “Appellate Court Writ Petition Information Sheet.”

Download the Appellate Court Writ Petition Information Sheet (PDF)

Marsden, raising issue in AOB

A transcript of a hearing under People v. Marsden (1970) 2 Cal.3d 118, to relieve counsel on the ground of ineffectiveness, is to be handled by procedures under Rules of Court, rules 8.45 (confidential records) and 8.47 (Marsden transcripts). (eff. 1/1/2014).

As contemplated under the new rules, it appears that appellant may file their AOB (sans Marsden notice) and then the Attorney General must affirmatively request a copy of the sealed Marsden transcripts.  Appellant may then file a response to address any redaction concerns within 10 days after the AG’s application is filed.

Marsden, raising issue in AOB

The Fifth District's policy is the same as the Third's.

Minor's Name

In the Third District, for all cases, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child – in briefs and motions, according to Rules of Court, rule 8.401(a)(1) [use of full first name + initlal of last name unless the first name is unusual or would otherwise defeat anonymity]. The clerk will file the document with either this caption, or with a double-initial name caption.

This court considers the last name for any minor a matter of confidentiality per rule 8.401. Both CCAP and the court regard using the last name as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.

The Third District will continue to use the designation of parties in any juvenile proceeding by "double suppression" (using initials only in place of first and last names). Thus, for all dependency and delinquency cases, the parties are identified by initials only in court generated captions, including the parent of a minor. The court's use of double suppression is a result of the court's case management system.

CCAP TIP: Because this court generates its own appointment order, the caption will default to initials only. Counsel can go to the Social Security "Popular Baby Names" web site (external link) to determine if the name is among the 1000 most popular birth names during the last nine years; if so, they may use the first name in full pursuant to rule 8.401(a)(1), notwithstanding how it is reflected in the appointment order (unless other unusual circumstances apply).

Minor's Name

In the Fifth District, counsel may use the first name plus the initial of the last name for a minor – whether a client, a witness, or a dependency child – in briefs and motions.

This court considers the last name for any minor a matter of confidentiality per rule 8.401. Both CCAP and the court regard using the last name as a substantive error in briefing by the panel attorney, regardless of the reasoning behind it.

For grandparents' names in dependency cases, use the first name and last initial (Mary and Joe A.) or refer to them as "grandparents," whichever is least confusing in context.

This court will identify the parties in juvenile dependency and delinquency cases by using their first name and last initial in both published and unpublished opinions, unless circumstances (e.g. a unique first name) would indicate that this would compromise the aim of confidentiality. For publicly-available docket (external link) information in these cases, however, the court will continue to identify the parites by using initials only.

Because CCAP generates the appointment order for the Fifth District (if the court agrees to the selection of counsel), the order will reflect CCAP's case management system default to the use of first name + last initial. It is counsel's responsibility to determine if the minor's name is so unusual that a double suppression (initials only) is warranted for filings. (See Cal. Rules of Court, rule 8.401(a)(1).)

CCAP TIP: Counsel can go to the Social Security "Popular Baby Names" web site (external link) to determine if the name is among the 1000 most popular birth names during the last nine years; if not, they should instead use an initial for both the first and last name, notwithstanding how it is reflected in the appointment order.

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Nonappealable case

For nonappealable order or judgments in criminal and delinquency cases, the Third District will not consider a motion that asks the Court of Appeal to determine whether the case is appealable.  Instead, when counsel has concluded that the matter appealed from is not appealable, doublecheck with the CCAP buddy, then submit a brief pursuant to People v. Wende (1979) 25 Cal.3d 436.  For the Statement of Appealability, counsel should state simply, "There may be a question as to the appealability of the matter being appealed."  

The Court will determine whether the case is properly before the Court when it conducts its review of the briefing in the ordinary course of the appeal.  If the Court determines that it is, the Court will conduct a normal Wende review and request supplemental briefing on any issues that the Court believes should be briefed.

A Wende brief requires that the statement of the case and statement of the facts be adequate to assist the reviewing court during its Wende review.  It is not proper to present an argument in the Statement of the Case, but it is proper to identify the proceedings that occurred in the court below that may give rise to an issue.  CCAP recommends that counsel craft the Statement of the Case in a way that draws the Court's attention to potential issues in the event that the Court finds that the appeal is properly before the Court.

Nonappealable case

If counsel concludes that the case is from a nonappealable order or judgment, doublecheck with the CCAP buddy.

The Fifth District’s policy is that counsel should ask the Fifth District Court of Appeal for instruction on whether or not to proceed with the briefing. The Fifth is not opposed to appointed counsel taking a positive position on the appealability question with a brief citation to applicable case law or statute. The Court will issue an order so counsel knows how the Court wishes counsel to proceed.

See a sample: Application for Order Concerning Appealability (PDF) (for the Fifth)

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Oral argument - about those questionnaires from the clerk/court

The Third District sends only one questionnaire to the parties regarding waiving/scheduling oral argument.

Include a proof of service when returning it to the court.

Do not include conditional waiver language.

Oral argument - about those questionnaires from the clerk/court

The Fifth District clerk sends a questionnaire with the month of oral argument listed. If you request oral argument, you will be notified promptly of the specific date and time of appearance in compliance with Cal. Rules of Court, rule 8.252(b).

panel reminder: For all appointments (assist and independent), discuss the case with your CCAP buddy before deciding whether to seek or waive oral argument, even telephonic appearances.

Oral argument – citing new authority

Before oral argument counsel should furnish the clerk with a list of citations (original + 4 copies) of any decision rendered after prepration of the briefs which will be cited by the name of the attorney submitting the citations. It may not include arguments or explanations. (See Cal. Rules of Court, rule 8.254.)

Formal proof of service is required unless presented at the time of oral argument. If presented at oral argument, please hand them to the courtroom clerk together with your business card.

Oral argument – citing new authority

The Fifth District follows Ca. Rules of Court, rule 8.254, which governs when a party wishes to file new authorities with the court.

Rule 8.254 provides that the authority must be “new” as defined by the rule, and the party should provide “only a citation to the new authority and identify, by citation to a page or pages in a brief on file, the issue on appeal to which the new authority is relevant.  No argument or other discussion of the authority is permitted in the letter.”

The list should be TrueFiled separately from your oral argument questionnaire response form if being submitted at same time.

Oral argument – conditional waiver

The Third District does NOT accept conditional waivers for oral argument.

Requests that include a conditional waiver will be rejected via TrueFiling and returned to counsel to make an election to either request argument, or waive.

Oral argument – conditional waiver & unavailability

The Fifth District's form includes an election for conditional waivers. Counsel must also now choose whether to appear in person or telephonically if the other party does not waive.   

The form does not include a specified spot to convey counsel’s dates unavailability. Instead, handwrite on the form known dates you are unavailable.

Oral argument – electronic devices at

The Third District does not have a form posted for this access. Please contact the court clerk ahead of oral argument for any special need requests.

Oral argument – electronic devices at

Effective January 2014, counsel may bring a laptop or tablet device for use during oral argument. Such devices must be silenced and placed in “airplane mode.” No audio or video recording or photography of oral argument is permitted without prior court approval (see Cal. Rules of Court, rule 1.150). The Court no longer requires prior notification or an Application when bringing e-devices to oral argument.

Oral argument – telephonic

The Third District will now consider telephonic oral argument. Please contact the court clerk for details.

Oral argument – telephonic (including Court Call)

Effective July 1, 2014, Court Call (www.courtcall.com external link) will be used for any party appearing telephonically for oral argument in the Fifth District. (Their aging teleconferencing equipment has now been retired.) Parties appearing using Court Call must call Court Call reservations at 1-866-582-6878 to schedule an appearance. Fees for Court Call use will be paid directly to Court Call and can be claimed as an expense on the final claim. Currently, the fee is $40 for the first 45 minutes and $7.50 for each additional 15-minute increment. Appearance waiting time does not start the clock.  Additional fees can be avoided by making arrangements at least three business days in advance. 

According to their web site, as a private company, Court Call fees apply to all participants, including government agencies.  (The Fifth District web site announcement mentions Fee Waivers, which apply only to in pro. per. litigants.)

In most instances, Court Call prohibits the use of cell phones on the basis that they can be disruptive to the court. Court Call appearances should be made from a land-line, with the handset engaged, wherever possible. If you use only a cell phone as your business phone, please contact Court Call directly well in advance of your appearance to discuss it with them.

Court Call expenses may be claimed on Expense Line #4 on the claim form for reimbursement.

Oral argument – unavailability

If counsel anticipates that he or she will be unavailable for an oral argument in the Third District, counsel should wait until the court has set an oral argument date before notifying the court regarding counsel's unavailability. Once a date has been set, counsel may file a formal request for a continuance if he or she will be unavailable on the scheduled date. Do NOT file a notice of unavailability ahead of time.

Oral argument – unavailability

If counsel anticipates that he or she will be unavailable for an oral argument in the Fifth District, the court prefers counsel to include the dates that he or she will be unavailable handwritten on the Fifth's oral argument response form. Counsel should wait until the court sends the oral argument notice that specifies which month the argument would be scheduled before notifying the court about counsel's unavailability.

Opinion, service of

The Third District does not send appellant a copy of the opinion. Appointed counsel should promptly send the client a copy unless another arrangement has been made.

Opinion, service of

The Fifth District’s policy is the same as in the Third District.

Oversized briefs

The Third District will closely scrutinize a request to file an oversized brief for good cause. (See e.g. In re S.C. (2006) 138 Cal.App.4th 396.) [See CCAP's sample motion (PDF) for suggestions in drafting your request.] The request can be filed simultaneously with the brief.

The court's practice is to enter a grant on the docket but not to issue a separate written order. In most cases, the mere fact that the brief is in fact "filed" would be confirmation that the motion was granted. Check the court's online docket (external link) for confirmation.

Oversized briefs

The Fifth District’s policy is to closely scrutinize a request to file an oversized brief for good cause. [See CCAP's sample motion (PDF) for suggestions in drafting your request.]

The court expects applications to file briefs in excess of 25,500 words to be filed only in unusual cases. Counsel should take care to specify everything in their request to establish that a longer brief is really necessary.

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Petition for rehearing

In the Third District, an appellant can file a petition for rehearing in pro. per. if the brief was filed pursuant to People v. Wende, otherwise, the court will not accept a petition for rehearing submitted by an appellant in pro. per. where appointed counsel is still counsel of record. Therefore, it is important that appointed counsel protect the client's right to petition for review by filing for rehearing if the opinion misstates the facts or fails to address an issue (rule 8.500(c)(2)). A petition for review in the California Supreme Court can then be filed by the client in pro. per.

Petition for rehearing

In the Fifth District, a petition for rehearing must be filed by counsel of record, including Wende cases. Therefore, it is important that appointed counsel protect the client's right to petition for review by filing for rehearing if the opinion misstates the facts or fails to address an issue raised in pro. per. by the client (rule 8.500(c)(2)). A petition for review in the California Supreme Court can then be filed by the client in pro. per.

Read how to Demystify the Petition for Rehearing

For Phoenix H. procedures, please look under "S" for Sade C./Phoenix H. procedures.

Post-remittitur follow-up

This court does not provide trial counsel or the client a copy of the opinion. As a practical tip, appointed counsel should notify trial counsel that the case will require further court appearances and resolution of issues in the trial court.

Post-remittitur follow-up

The Fifth District’s policy is the same as in the Third District.

Preauthorization for extraordinary expenses other than translators or travel

The procedural policy for this court is the same as that for their preauthorization for travel: send the request and all copies first to CCAP for our input and recommendation to the court. (See Travel)

Preauthorization for other extraordinary expenses other than translators or travel

The procedural policy for this court is the same as that for their preauthorization for travel: send the request and copies directly to the Court of Appeal. (See Travel)

Proof of Service Reminder

If you submit anything for filing -- whether it is a motion, a brief, or even a court response form (such as the oral argument response form -- you should always include a formal Proof of Service with that filing. A cc: list is not sufficient to meet this requirement.

Proof of Service

The policy for this court is the same.

Pro. Per. filings – NOT accepted in Third

The court will not accept pro. per. filings submitted by an appellant where appointed counsel is still counsel of record, including those submitted through counsel. For example, do not forward a client's motion/issues to the court; do not staple the client's motion/issues with a cover letter by counsel; do not request filing of a supplemental pro. per. brief; do not file a pro. per. petition for rehearing (see Petition for Rehearing above).

Pro. Per. Filings – Fifth

The procedural policy for this court varies. Do not file a pro. per. petition for rehearing (see Petition for Rehearing above). Call the court clerk concerning other pro. per. filings.

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Sade C. (Phoenix H.) Filings for Dependency Cases

In light of the new In re Phoenix H. case, the Third District has adjusted their procedures for Sade C. filings, effective as of Jan. 7, 2010:

Pursuant to the dictates of Phoenix H.,  if no arguable issue can be discerned, counsel should no longer file a letter to that effect nor move to substitute appellant to proceed in pro per.  Rather, counsel should file a “Wende-type” brief [a “Phoenix H. brief”] which shall at a minimum include an abbreviated recitation of the relevant facts and procedure and a declaration establishing that counsel has advised appellant that counsel has reviewed the entire record, served a copy of the brief on appellant, and informed appellant of appellant’s right to file, within 30 days of the filing of the “Phoenix H. brief,” a motion to file a supplemental brief supported by a showing of good cause that an arguable issue does exist.

A citation to the Phoenix H. case should be listed on the green brief cover: (In re Phoenix H. (2009) 47 Cal.4th 835.)

"Brief" is as defined in the Rules of Court, which includes a green brief cover, tables, a statement of appealability, statement of case/fact (as discussed above), an "argument" portion, a word count, and a proof of service. "Brief" does not mean letter brief.

In any case where appellant already has been permitted to proceed in pro per, the court will proceed to dispose of the appeal on the merits if an opening brief is filed by appellant.

Henceforth, all Sade C. letters and motions to substitute appellant in pro per will be rejected with a directive to file an opening brief in compliance with Phoenix H.

For your convenience, CCAP has drafted a sample Phoenix H. brief that meets the Third District’s new procedures, including all advisory elements. Counsel may adopt and/or modify the sample as deemed necessary. Other related samples can also be found on the Dependency Client Samples page.

Sade C. (Phoenix H.) Filings for Dependency Cases

The Fifth District has adopted new formal procedures in light of In re Phoenix H. (2009) 47 Cal.4th 835 (S155556 (PDF)).  Please review these procedures carefully as they are slightly different than that of earlier announcements.

Read the Fifth District's policy (PDF)Fifth District's policy pdf file link 

Court-appointed counsel may submit the Phoenix H. brief in letter format; compliance with California Rules of Court, rule 8.360 (a) is not mandatory with this court when court-appointed counsel find no arguable issue to be pursued on appeal. (Compare to Third District's policy. Be sure you know the accepted procedure for the different Courts of Appeal before you file.)

Once a Phoenix H. brief is filed, it is the appellant’s burden to personally make a good cause showing that an arguable issue does exist. Court-appointed counsel are urged to so inform their appellant-clients. Upon the filing of a Phoenix H. brief, the court will extend 30-days leave for appellant to personally file, with the court, a letter stating a good cause showing that an arguable issue does exist. No formal motion or other pleading will be required of the appellant, except that appellant must attach a proof of service that includes the superior court clerk, trial counsel for the child(ren), appellant’s counsel, and counsel for respondent. If the appellant does not file such a letter within the time permitted or otherwise does not make a good cause showing that an arguable issue does exist, the appeal will be dismissed as abandoned.

For your convenience, CCAP has drafted Phoenix H. samples that reflect the Fifth District’s new procedures, including all advisory elements. Counsel may adopt and/or modify the samples as deemed necessary. All samples can be found on the Dependency Client Samples page.

Sealed records

A motion to obtain a sealed record does not toll the AOB due date. Counsel must submit a separate application for EOT. Sealed documents requested in a motion to augment will not normally be sent to counsel without a separate motion after the sealed material has been filed with the court.

When filing a motion to augment for a sealed record, do not at the same time move for permission to view the sealed material. Instead, once the augmented record has been filed, THEN move for permission to view the sealed record. On receipt of the motion to view, the Court will examine the sealed record and determine whether to grant counsel's request to view it. In other words, they prefer a 2-step process rather than all-in-one motion.

Sealed records

A motion to obtain sealed records is treated the same as an augment motion and tolls the AOB due date.

Settled statements

Motions for a settled statement may be filed directly in the trial court with a copy sent to the clerk at the Third District. However, the pending motion in the trial court will not toll the AOB due date. Request extensions of time in order to complete the record settlement proceedings; inform the Court of Appeal of the progress in the trial court to complete the settled statement.

Settled statements

Appointed counsel must first seek permission to settle the record from the Fifth District Court of Appeal. The court will review the request and proposed motion for a settled statement and, if granted, will direct counsel to file the motion in the trial court. Subsequent extension of time requests in order to complete the record settlement proceedings in the trial court should include an update for the court on the progress made in the trial court to complete the task.

Stipulations Affecting Case Outcome

The Third District has not issued a directive on this item.

Stipulations Affecting Case Outcome

The Fifth District appreciates a courtesy telephone call to the clerk as soon as possible whenever parties engage in negotiations which might affect the progress of a case, such as a stipulation for reversal of judgment, or anything else which might affect the finality of the case. The clerk will ask counsel to submit a follow-up letter. While this advisement may not change the court's workflow on a given case, it is regarded as a helpful notification to court staff.

View various sample motions to settle the record in our online Motions Book

Read Procedures for Settled Statements

SUBSTITUTION OUT OF A CASE: see "W" = Withdrawing from a case.

Supplemental brief

In the Third District, the supplemental brief may be submitted separately or simultaneously with the request to file it. If counsel is concerned that the court may deny filing, a cautious approach would be to file the application first to obtain the court's permission to file a supplemental brief before drafting and submitting it for filing.

The application must show good cause, which includes:

  1. Why the supplemental brief is necessary; and
  2. Why the issue was not raised, or if raised, was not adequately briefed, in appellant's opening brief.

If leave to file a supplemental brief (by either party) is granted, the court's order will set a briefing schedule and whether a supplemental reply brief is permitted. If a reply brief is not listed in the order, counsel must separately seek leave to file a supplemental reply brief.

Supplemental brief

In the Fifth District, the supplemental brief may be submitted along with the request to file it.

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Transcripts and Bates Stamp

Transcripts and Bates Stamp Page Numbering Confusion

Fifth District county Superior Courts are all currently utilizing the Transcript Assembly Program (TAP) to electronically compile and Bates stamp the clerk’s transcript for both dependency and criminal cases.

The Bates stamp for these transcripts, however, may look a bit different than they have in the past. The official transcript page number counsel should cite to will always be located in the lower-right corner of the page, and will appear in the form: -1-, -2-, -3-, etc. There are other numbers that may be present in the upper-right corner that are generating confusion because these numbers appear to look more like the traditional Bates stamp -- just ignore that page numbering!

Translator fees – preauthorization requests

CCAP is authorized by the Third District to approve up to $300 in translator expenses without court screening. Requests (and copies) for subsequent funding (in excess of $300) should be sent first to CCAP for our input and recommendation to the court.

Translator fees – preauthorization requests

CCAP is authorized by the Fifth District to approve up to $300 for translator expenses. However, subsequent requests should be sent directly to the court for further preauthorization for translation expenditures.

We now have foreign language resources available to facilitate communication with non-English speaking clients. CCAP is providing this resource with the hope that any approved interpreter funds can be reserved for advising the client about case specifics.

Travel (other than for oral argument) – preauthorization requests

Panel attorneys must obtain approval for all travel expenses in advance to be reimbursed for these expenses. In this court, the expense request and all copies should be sent first to CCAP for our input and recommendation to the court. Caveat: CCAP is authorized to approve up to $600 in travel expenses without court screening. However, that authorization is limited and does not include habeas investigation. Please review the articles listed below prior to drafting your request.

Travel (other than for oral argument) – preauthorization requests

Panel attorneys must obtain preapproval for all travel expenses (other than for oral argument) to be reimbursed for these expenses. Send the expense request and copies directly to the court for consideration and approval. (CCAP can lend assistance to counsel in framing the request, but does not offer a recommendation unless it is requested by the court.) It is recommended that counsel review the articles listed below prior to filing your request with this court.

The AOC has issued statewide travel Guidelines (pdf) for all appointed counsel.
for appointed cases in the Third and the Fifth District, review court and project-specific policies on our Preauthorization Procedures page. CCAP also recommends that counsel read our separate tips article before drafting a request for preauthorization.

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Use of associate counsel

Under current court and AIDOAC policies, appointed counsel must first obtain the court's approval for services rendered by associate counsel if the associate is going to sign any pleading or appear at oral argument. Route the request to CCAP. The request should include: the name, bar number, address and telephone number of associate counsel; a statement that the compensation claim will be filed in the name of appointed counsel and bear counsel's signature; a statement that a separate claim will not be filed by associate counsel; the signature of appointed counsel and associate counsel; and, a proof of service for opposing counsel. Also, all statewide project requirements must be met – see description under Fifth District's policy on use of associate counsel.

Use of associate counsel

Statewide AIDOAC requirements apply: associate counsel cannot be used for cases appointed on an assisted basis except under extraordinary circumstances and by first obtaining approval from the project director; appointed counsel must read the record and be conversant in the facts and issues; appointed counsel is fully responsible for the quality of the briefing and other pleadings filed with the court; and, appointed counsel is fully accountable for the case, including all deadlines and the projects' performance evaluation. CCAP requires all communications with the project be handled personally by appointed counsel, not by the associate.

Download the Associate Counsel Log form (PDF)

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Withdrawing an argument

Send an original signature letter with four copies for the court (same number as briefs), AND a formal proof of service (not just noting cc: at the bottom). Indicate which issue is being withdrawn. No other formal motion is required.

Withdrawing an argument

The Fifth District has not issued a directive on this item.

Withdrawing from a case
(for appointed counsel steps)

DO NOT TrueFile your motion! Follow the steps below:

First step: contact CCAP to discuss the contents of your motion.

Second step: when instructed, send a PDF-searchable-format motion to withdraw to CCAP, using "/s/ counsel's typed name" on the signature line, and an executed proof of service. (Important note: the motion and proof of service should be ONE document, not two separate documents.)

Third step: Serve the parties by postal mail or via email. Do not use TrueFiling.

When CCAP receives the motion, it will be forwarded to the court for processing together with a recommendation for substitute counsel. (See Important Reminder below.)

Fourth step: Retain one original "wet" signature hardcopy of the motion in your file.

It is unnecessary to provide any additional paper copies to either CCAP or the court.

Important Reminder
: You are counsel of record until the court issues an ORDER vacating your appointment and appointing new counsel on the case. This means that you are counsel of record while the motion is pending and are ethically responsible for all aspects of the case, including all due dates, until the court grants your motion and appoints new counsel in your stead.

It is unnecessary to provide the court supporting documentation. The courts will generally act on the motion to withdraw with generic details regarding health and other private situations. You may consider whether to offer sealed materials upon the court's request.

Withdrawing from a case
(for appointed counsel steps)

Use the same steps as the Third.

Writ petitions

Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court. Submit your written request and all copies to CCAP for our input and recommendation to the court.

Writ petitions

Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court. Submit your written request and copies directly to the court. The Fifth District requires that all petitions, other than habeas, be submitted with a completed coversheet called: “Appellate Court Writ Petition Information Sheet.”

Download the Appellate Court Writ Petition Information Sheet (PDF)

 

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