motion samples book

Abandonment

Effective 3/11/08: The Fifth District no longer requires counsel's declaration that, "the absence of arguable issues is not a substantial factor in the dismissal of the appeal."

Effective 10/20/15: In both the Third District and the Fifth District, the attorney may sign the motion, the client's signature is no longer required. However, CCAP strongly recommends that you obtain something in writing signed by the client expressing their wishes to abandon the appeal. This is good business practice. The absence of the client's signature on the motion does not alter an attorney's ethical duty to obtain the client's authorization to abandon the appeal. The client is the person who decides whether to abandon his or her appeal after consulting with counsel.

For both assist and independent cases, don't forget that you are required to consult with the CCAP buddy before filing the motion!

Abatement

Counsel will need to obtain a certified copy of the appellant's death certificate to attach as an exhibit to the motion to abate. (For more information on abatement, read the article Abatement of Criminal Appellate Proceedings Upon the Death of a Client)

Application for Order Concerning Appealabilty

This application can only be filed in the Fifth District. The Third District will not consider a motion asking it to determine whether the case is appealable. Rather, counsel should file a Wende brief, and in the statement of appealability counsel should state, "There may be a question as to the appealability of the matter being appealed."

Nickerson

If the defendant was initially charged by an information with a felony charge, then the case is still a "felony appeal" even if it ultimately results in a misdemeanor conviction. (People v. Nickerson (2005) 128 Cal.App.4th 33.) In this situation, this application is unnecessary. The sample is to be used for cases where the felony charge is reduced to a misdemeanor before an information is filed.

Use of Associate Counsel in Appointed Cases

The Appellant Indigent Defense Oversight Advisory Committee (AIDOAC) has adopted a policy that severely restricts the use of associate counsel in all Assisted appointment cases. Only in rare instances will the project waive these restrictions. For extraordinary circumstances, the panel attorney must request preapproval from the project's Executive Director. (For more information, read "AIDOAC Policy on Use of Associate Counsel" in the CCAP panel manual)

Motion to Augment

If the record is incomplete, the court expects a motion to augment filed within the first 30 days of appointment, and before an EOT is filed. Appointed counsel must meet the augment deadline set in the appointment order, and if counsel is unable to do so, an explanation is required when the augment motion or an initial EOT is filed. Press of business reasons are not acceptable.

When sealed record items are needed for an appeal, first check the Court of Appeal's docket for the case to see if the sealed record was received and lodged. If the court has already received the sealed record, file a motion to transmit the sealed material to counsel. Otherwise, if the sealed material has not been lodged in the Court of Appeal, file a motion to augment the record.

In the Third and Fifth Districts, 8.340(b) items should not be included in a motion to augment.

Motions to augment the record should not include a request to stay the appeal. Requests to stay an appeal are considered urgent and the court processes these requests differently from motions to augment. If counsel is seeking to stay an appeal, the request should be made in a separate motion.

For more tips on motions to augment, see CCAP's article on record completion.

Filing a 2nd Augment Motion

If you need to make a second augment motion, explain why.

Rule 8.340(b) Letter in the Trial Court

For normal record on appeal items, file this motion in the superior court. For differences between formal (MTA) and informal augment procedures (rule 8.340(b) letter to superior court) see CCAP's article on record completion. Sending the Court of Appeal clerk a copy of the rule 8.340(b) letter sent to the superior court will toll the AOB due date in the Court of Appeal and no separate EOT is needed. But, the courts diverge in practice for respondent and reply briefs due. In the Third, if the reply brief is due, the notice does not toll the due date and an EOT must be filed. In the Fifth, if either a respondent's brief or reply is due, the notice does not toll those due dates and an EOT must be filed.

You may want to include a SASE (self-addressed stamped envelope) with a request that the clerk return a copy of the letter to acknowledge its receipt. Also some counsel add an additional sentence at the end of the supplemental record request, asking the clerk to let you know if they decide that any of the requested items require a formal motion to augment the record on appeal. (Some clerks will honor this request, but most will only do so as a part of their response sent to the Court of Appeal and counsel.)

Bail on Appeal

Rule 8.312(b) requires that the application be made first in the trial court. A bail motion may be filed in the superior court without a motion to expand the appointment. Reasonable guidelines for preparing the motion are approximately 2.0 hours. Appearance for the motion in the superior court is not expected unless other alternatives are not available. So see if trial counsel will make the appearance in that court. If trial counsel is not available, appearance and court time can be compensated as justified because appellant had no other counsel available. Your travel related expenses, however, cannot be compensated without prior written approval. For more information on what to include in your request for travel expenses, read Preauthorization Procedures [in the Third/Fifth].

Change of Address

This notice must be filed for each case by appointed counsel or an unrepresented appellant. (Cal. Rules of Court, rule 8.32.) It is not to be confused with the change of address form required to be sent to the projects and to the JCC.

Both the Third and the Fifth District require court appointed counsel to send a represented appellant's change of address to the clerk. In the Third District, this notice must also be accompanied by a proof of service.

Application to Obtain Client's File From Uncooperative Counsel

File this application as a last resort. First try writing trial counsel a letter and enclosing a copy of the state bar opinion reminding counsel of the requirement to send files to successor counsel. If the letter does not get the desired result, appellant must then exhaust his remedy of seeking relief from the State Bar of California. A complaint form and instructions can be found on the State Bar website.

Motion to Consolidate Two Appeals

A motion to consolidate appeals does not toll the AOB due dates in either the Third or the Fifth District.

Proof of Service

The language used in this sample is for use by an attorney only.

At some point, you may have a client who does not want to receive in prison copies of the briefs, transcripts, or other communications about the substance of the offenses or even case updates. Your concern is how to meet your professional obligations to keep your client informed and still protect your client. California Rules of Court, rule 8.360(d)(1) requires that appellate counsel must serve each brief on the appellant unless the appellant requests otherwise. The proof of service must state that a copy was sent to the defendant, or counsel must file a signed statement that the defendant requested in writing that no copy be sent. (Cal. Rules of Court, rule 8.360(d)(2).) Obtaining a written waiver from your client for your file at the beginning of the case and obtaining a reliable alternative physical service address is highly recommended for these cases.

Proof of Service for TrueFiling & eService

Use this sample Attorney's Certificate of Electronic Service when you can e-serve a party. It also includes snail-mail checkbox options for parties that cannot be e-served. The electronic filer must maintain the original signed copy for the life of the case. Rule 8.71(f)(3) states: "The party filing the proof of electronic service must maintain the printed form of the document bearing the declarant's original signature and must make the document available for inspection and copying on the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in rule 8.77(c)." (See also, rule 8.77(a).)

The language used in this sample is for use by an attorney only.

For the TrueFiling/eService version, the Fifth District requests that the typed name of the declarant be ABOVE the signature line with /s/ followed by the typed name.

Dismiss Appeal, as Moot

Before filing this motion, consider whether the appeal is nevertheless reviewable. An appellate court can render an opinion when an issue is technically moot if "it presents an important question affecting the public interest that is 'capable of repetition, yet evading review.'" (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190.)

Dismiss Review

Use this motion when the lead case has been decided and your case is still pending in a grant and hold status. This is usually advantageous when the lead case was decided favorably and there is some advantage to your client to remand his case as quickly as possible.

Request for an Early Remittitur

An early remittitur is usually advantageous when the appeal was decided favorably and there is some advantage to your client to finalize his case as quickly as possible (such as an approaching release date). This motion requires the respondent to agree. NOTE: The Fifth District appreciates a courtesy call to the clerk as soon as possible whenever parties engage in negotiations which might affect the finality of the case.

Errata Letters to Correct a Brief

In the Third and Fifth Districts, an errata letter may only be used to correct very few minor typographical errors. If there are substantive or substantial changes to a brief, counsel should file a motion to file a corrected brief/withdraw brief and file a substitute brief. Counsel may include the substitute brief with the motion to file the corrected brief as a separate document. The same service requirements set forth in the Rules of Court for service of briefs apply.

Request to Augment for Documentary Exhibits

Counsel may seek to augment the record on appeal with documentary exhibits to facilitate review. If copies cannot easily be augmented, consider requesting that the exhibits be transmitted to the nearest Court of Appeal for viewing. (See next sample: "Exhibit, Request to Transmit")

Request to Transmit Exhibits for Oral Argument or Viewing

If the exhibits are relevant to issues raised on appeal, counsel should ensure their production in the appellate court by making this request. This motion can also be used if copies cannot easily be augmented to a record; the exhibits can be transmitted to the nearest Court of Appeal for viewing instead.

Expand Your Appointment for Writ Work

All writ work in the Third and the Fifth requires an expansion of the appointment to be compensated for that work. In both the Third and the Fifth, submit your request to CCAP for project input and recommendation to the court. For more information on what to include in your request for expansion, read Preauthorization Procedures [in the Third/Fifth] and Expanding Your Appointment.

You do not need to serve an Application to Expand the Appointment on the Attorney General; serve only your client and CCAP.

EOT, Fifth District

The Fifth District has a stated preference for the simplified form. CCAP's version is provided here.

The Fifth District has a very rigorous approach to the timely filing of briefs. Don't use a late letter as a "grace period" for filing the opening brief! Instead, file the brief by the due date, or file an EOT.

If the record is incomplete, the court expects a motion to augment be filed before an EOT is filed.

For more tips, see the EOT article.

EOT, Third District

The Third District has a very rigorous approach to the timely filing of briefs. Don't use a late letter as a "grace period" for filing the opening brief! Instead, file the brief by the due date, or file an EOT.

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

For more tips, see the EOT article.

Fares/Clavel Credits Correction Letter to Trial Court

As a general rule, you must pursue a Fares request in the trial court as a predicate to urging the error on appeal. Some superior courts will accept an informal letter request (as discussed in Clavel); others require counsel to file a motion. Both samples are provided in this list. It is advisable that you find out which procedure the superior court judge prefers, including whether an Ex Parte request is acceptable. When filing your request/motion, do a formal proof of service, including a copy to the Court of Appeal clerk. This does not, however, suspend the AOB due date in either court; you must track your AOB due date and file EOTs as needed while the motion/request is pending in the trial court. Because of travel limitations, ask trial counsel to appear on a formal motion in the superior court; otherwise, as soon as possible, request preauthorization for travel from CCAP (see Preauthorization policy).

Fines/Fees/Abstract Correction Letter to Trial Court

Under Penal Code section 1237.2, "[a]n appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing." Section 1237.2 "only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."

As a general rule, you do not have to pursue an abstract correction in the trial court as a predicate to urging the error on appeal.

Addressing errors related to fines, fees, and the abstract informally in the trial court may provide quicker relief for your client and it may be the only way to get such a matter resolved where there are adverse consequences that might warrant abandonment. When filing your request/motion, send a copy to the Court of Appeal clerk. This does not suspend the AOB due date in either court; you must track your AOB due date and file EOTs as needed while the motion/request is pending in the trial court.

For additional guidance on presenting fines and fees issues in appeals in the Third District, see People v. Jordan (2018) 21 Cal.App.5th 1136.

Interpreter Expenses

Preauthorization is required for translator expenses in both the Third and the Fifth. Translator fees that are not expected to exceed $300 may be submitted in writing directly to CCAP for preapproval. For fees expected to exceed $300, the preauthorization procedures vary by court. For more information, see the Interpreter & Travel Expenses article. CCAP encourages attorneys to make use of the foreign language letters available on the website in order to reserve approved interpreter funds for advising the client about case specifics.

Joining a Co-Appellant's Briefing

In both courts, 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.

In the Third District, if your appellant's opening brief has already been filed and you seek to join in 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 argument. (See rule 8.200(a)(5) [timing].) The application will be submitted to the court for a discretionary ruling.

Motion for Judicial Notice

Effective 1/1/09 there were new requirements for judicial notice requests. Per new subdivision (a)(2) of rule 8.252, the motion must state: why the matter is relevant, whether the matter was presented to the trial court and whether it took judicial notice; and whether the matter relates to proceedings occurring after order or judgment that is the subject of the appeal.

The Third and Fifth Districts prefer that counsel file a motion for judicial notice before filing the AOB (rather than filing them simultaneously) to give the court an opporunity to rule on the motion prior to the filing of the AOB. In the Third District, counsel does not need to include a proposed order with the motion as this court issues its own order. Finally, one does not need to augment the record with judicially noticed materials. If the request is granted, the materials automatically become part of the record.

Letter to Trial Counsel re Cooperation

This is a first step in trying to obtain trial counsel's file. Enclose a copy of the state bar ethics opinion on point. If the letter does not get the desired result, the next step is to seek relief from the State Bar of California. A complaint form and instructions can be found on the State Bar website. Only after that avenue has been exhausted, can appellant file an application in the Court of Appeal seeking an order to compel trial counsel to turn over the file.

Marsden Certificate

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.

Notice of Appeal, PC 1237.5 Language

Because of the specific requirements set forth in rule 8.304(b), a notice of appeal should not be "from the judgment." If the notice is intended to raise sentencing issues, it should specify that it is based on "grounds arising after the plea that do not affect its validity." A notice that purports merely to be "from the judgment" should be amended.

Augment Motion - 2nd Request

If you need to make a second augment motion, explain why.

Oversized Brief

Both the Third and the Fifth 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.) In the Third District, the request may be filed simultaneously with the brief.

Exhaustion Petition

The exhaustion petition must say "Petition for Review to Exhaust State Remedies" on the cover if it applies. (Rule 8.508(b)(1).) This petition requires only an original + 8 copies for the Supreme Court. The superior court need not be served. (Rule 8.508(c).)

Federal Habeas Form

If the form is going to be used by an indigent petitioner, the Application to Proceed in District Court Without Prepaying Fees or Costs should be filed as well.
This generic form is accepted by the Eastern District, which does not have a district-specific form.

Publication Request

The request for publication must be delivered to the court within 20 days after the opinion is filed. (Cal. Rules of Ct., rule 8.1120(a)(3).) Also, consider whether publication is really in your client's best interest.

Sealed Transcripts

View a sealed record before requesting that it be unsealed. A request to view seal transcripts will not toll a briefing deadline.

Settled Statement in the Trial Court

In the Fifth District, appellate counsel must file an application in the Court of Appeal first, and thereby obtain the court's permission to file this motion in the trial court. In contrast, in the Third District, appellate counsel may file this motion directly in the trial court, without first obtaining the appellate court's permission. In either case, appellate counsel will need to monitor deadlines and file EOTs, as the pending motion in either the trial court or the Court of Appeal will not toll the opening brief due date. For more tips, view the article on settled statements.

Motion to Settle the Record

A pending motion to settle the record will not toll the opening brief due date in the Court of Appeal; get EOTs in the meanwhile. For more tips, view the article on settled statements.

Motion to Substitute Client in Pro. Per. in a Dependency Case

In the Third District, the court will promptly dismiss a dependency appeal when counsel files a Sade C. letter; appellant is not automatically given 30 days to respond. If the client states an intention to file their own brief instead, appellate counsel must file this motion in the Court of Appeal first, thereby substituting out of the case. This formal motion includes points and authorities, the attorney's declaration that counsel discussed the Sade C. filing with the client and sent them the transcripts, and the client's declaration that they do intend to file a brief. Counsel will need to start the declaration process in advance of the AOB deadline, to permit sufficient time for the motion to be timely filed prior to the deadline running. This motion should NOT be filed unless during Sade C. discussions the client states their intention to file their own brief. This motion is not necessary in the Fifth District.

Request to File a Supplemental Brief

In the Third District, a motion requesting permission to file a supplemental brief must be ruled on before counsel submits the supplemental brief for filing. If leave to file a supplemental brief (by either party) is granted by this court, the court's order will describe the deadline for a respondent's supplemental brief and whether a supplemental reply brief is permitted. If a reply brief is not listed in the court's order, counsel must separately seek leave to file a supplemental reply brief if counsel deems it necessary.

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

Both courts will look closely at counsel's stated reasons for the supplemental briefing request.

Stipulation for Early Remittitur

Consider obtaining a stipulation for issuance of an early remittitur from opposing counsel when the case has been reversed and it will affect either a release date or the timing of a new hearing in the trial court

Travel Expenses, Request for

For both Third and Fifth District cases, all travel other than for oral argument, must be preapproved in order to be compensated. This request is ex parte and opposing counsel need not be served. If you feel that the specificity of your request should not be in the public record, you can ask the court to seal the request, but such a request is discretionary so it is not advisable to include confidential matters in the request. For fees expected to exceed $300, the preauthorization procedures vary by court. For more information, see the Interpreter & Travel Expenses article.

Unredacted AOB

Read literally, under new rules of court effective January 1, 2014, counsel must move to file briefs and other documents that refer to information in probation reports under seal. Because it is sometimes necessary for counsel to refer to personal information in appellant's confidential probation report to support the argument(s) on appeal, this sample motion requests permission to file an unredacted brief under seal along with a redacted brief for the public. To address this issue, the Third District issued Misc. Order 2013-002: "Absent leave of court, parties shall not submit for filing an unredacted brief, application, petition, memorandum, or other document that contains “personal information” derived from a probation report. (Pen. Code § 1203.5; People v. Connor (2004) 115 Cal.App.4th 669; Cal. Rules of Court, rules 8.45, 8.47 (effective January 1, 2014).)"

The Fifth District has conveyed, "it is the court's experience that counsel in the Attorney General's Office (AG's Office) and associated with the Central California Appellate Program (CCAP) carefully avoid discussion of personal information, which might be confidential about an appellant, witness(es), and victim(s). Accordingly, counsel in the AG's Office and those associated with CCAP may file briefs that refer to probation report material, without motioning the court to file such briefs under seal."

Vacate Judgment Because of Lost Records

This option can only be used after an attempt to settle the record has failed.

Withdraw an Argument

In the Third District, no formal motion is required to withdraw an argument from the AOB. Instead, send an original signature letter with 4 copies for the court, AND a formal proof of service on the parties (not just noting cc: at the bottom). Indicate which issue is being withdrawn.

Withdraw as Attorney

Before moving to withdraw from an appointed case, it is very important that counsel NOT TrueFile the motion directly with the court. Please do the following steps:

(1) Contact Panel Manager Liz Smutz and the staff attorney assigned to your case(s) to discuss the contents of your motion. This is a very important step. The motion to withdraw is a publicly filed document and counsel’s reasons for withdrawing may be very personal. Liz can help guide you on the amount of information that is needed for the motion to withdraw.

(2) 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.)

(3) Serve your client, opposing counsel, and counsel for any other parties by postal mail or via email. Do not use TrueFiling.

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

(4) 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.

It is also not necessary to send supporting documentation with your motion. The courts generally will act on a 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.

IMPORTANT REMINDER: Motions to withdraw are discretionary and only granted for good cause. You are not relieved of your appointment, nor are your obligations to the client and case due dates, until the court issues an order granting your motion. (See Rules Prof. Conduct, rule 3-700(A)(2).) Retain the transcripts and mind all due dates until you receive the ruling unless CCAP tells you otherwise. Upon the court's granting of the motion, the court's order will direct you where to the send the client's file and/or record.

Word Certificate of Length

The word count certificate is required for all briefs and petitions. The word count certificate must state the actual number of words in the brief. Language to the effect of "consisting of no more than" x words will not suffice.
Rule 8.360(b)(3) now makes clear that the word count does not include the tables of contents and authorities, cover information required under rule 8.204(b)(10), the signature block, and any attachment allwed under rule 8.204(d).

Writ Petitions Info Sheet, 5th

Use this cover sheet when filing any petition in the Fifth District, except habeas.