procedural comparison chart: third vs. fifth

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Abandonment language

This court does not require specific language in a motion to abandon the appeal in order to process the request.

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."

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).)

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.

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.

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.

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

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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.

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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 "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.

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 to CCAP for our input and recommendation 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.

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 prepration 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.

Consolidating appeals

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

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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.

Procedure Change! Rule 8.44(b)(7) requires both an original and a copy of an extension of time application for the Court of Appeal; in addition, one copy for each separately represented and unrepresented party must be provided. Previously, the Third did not want the extra court copy. Effective November 19, 2008, please provide this extra copy in compliance with rule 8.44(b)(7).

Court service copies for all parties must include pre-addressed postage-paid envelopes. (Rule 8.50(c).)

Download: EOT form for the Third

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).)

NEW 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.

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

Expansion Requests

Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court for all related expenses. (See also, Cert. Petitions above.)

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

Preauthorization may also be required. Read about CCAP's preauthorization role & court procedures.

An application to expand appointment does not require service on the Attorney General. Serve your request only on the appellant 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.

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Habeas

Compensation for habeas and all other extraordinary writ work requires an expansion of appointment and preauthorization from the court for all related expenses.

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

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Joinder in briefing

A notice of joinder is required to join in a co-appellant’s argument. The notice should cite to rule 8.200(a)(5) (joinder rule), 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.

Judicial Notice

In the Third District, a request for judicial notice should include a proposed order.

In the Third District it is required 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).)

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. In addition, counsel should identify whether the juror involved in the unredacted portion actually served on the sitting jury panel or not.

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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.

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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 to CCAP for our input and recommendation to the court.

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 revised procedures under changes to the California Rules of Court, rule 8.328(b)(1)-(6), effective January 1, 2007.

The new Marsden notice pursuant to rule 8.328(b)(4), may be placed at the end of the opening brief following the Word Count Certificate.

Minor's Name: Use Initials Only in Caption

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.

In particular, 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. Finally, rather than try to distinquish between whether a first name is either an "unusual or common" name, this Court will default to using an initial only for the first name, regardless.

All counsel are expected to follow and use the court-designated caption, including the use of initials where appropriate for minors and parents.

All CCAP database paperwork (such as the recommendation of counsel) will now default to this initials-only format to mirror that of our court. 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 "Parties & Attorneys" entry.

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.

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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.

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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.

Oral argument – citing additional 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. 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 – conditional waiver

The Third District does not accept conditional waivers for oral argument. Requests that include a conditional waiver will be returned to counsel to make an election to either request argument, or waive.

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.

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 for suggestions in drafting your request.]

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 filed would be confirmation that the motion was granted. Check the court's online docket for confirmation.

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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.

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.

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 first to CCAP for our input and recommendation to the court. (See Travel)

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).

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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.

Sealed records

A motion to obtain a sealed record does not toll the AOB due date. Counsel must submit a separate EOT that is subsumed in the motion to obtain sealed records. 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.

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.

Stipulations Affecting Case Outcome

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

Supplemental brief

In the Third District, a formal motion requesting permission to file a supplemental brief must be ruled on before counsel submits the supplemental brief for filing. The motion 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.

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Translator fees – preauthorization requests

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

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 by the AOC. The expense request 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.

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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.

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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.

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 to CCAP for our input and recommendation to the court.