Effective August 23, 2019, the First District Court of Appeal has implemented some noteworthy updates to the local rules.
A record omission letter now tolls briefing
: Among the more significant (and welcome) changes, Rule 11 (c)
now provides for an automatic extension of time when the Court receives notice of a supplemental record request in the superior court pursuant to Rules 8.155(b), 8.340 (b), or 8.410 (a). Under the new rule, counsel will no longer have to separately file and request an extension of time while awaiting the omitted transcripts. Rather, the filing deadline will be automatically extended for 15 days from the date the supplemental record is filed. Reminder: To get the benefit of the automatic tolling, you must electronically serve the Court of Appeal with the record omission letter. Truefiling has a specific filing category for service copies of omitted record requests.
Extensions of time form
: Under new Rule 11
, attorneys should use the judicial council extension of time forms (CR-126
(delinquency), or JV-817
(dependency)) or something "substantially in the form of" the judicial council application. The old local form motions should no longer be used. FDAP is creating a revised form that will add a section to describe work performed to-date.
Tentative opinions: Rule 15 (b)
now explicitly provides that a panel may "on occasion and in their sole discretion" issue tentative opinions in cases scheduled for oral argument. While the Court has always had the option to issue such opinions, we have seen them with increasing regularity in the last few months. In some cases, especially where the tentative is in our favor, the opinion may obviate the need for oral argument. The procedure for waiving argument following the tentative opinion is set forth in Rule 15 (b).
You should check with your FDAP consulting attorney before doing so.
New authority letters: Rule 16
now specifies the procedure for alerting the Court to new authority prior to oral argument. Counsel should submit a letter alerting the Court to the new authority "when the authorities become available and as far in advance of any scheduled oral argument as possible." However, "[n]o argument or further discussion of those authorities is permitted in the letter." The rule is consistent with Rule 8.254 (b) of the California Rules of Court.
Augmenting the record and timing:
New Rule 4
(former Rule 7) states “(1) In cases in which the appellant or petitioner is represented by the First District Appellate Project, any request for an augmentation of the record shall be made within 30 days after the expiration of the 10-day administrative-review period.” FDAP’s understanding is that subparagraph (c)(1) applies only to cases in which a panel attorney is appointed on an assisted basis. For most independent cases, counsel should move to augment "no later than 30 days after the record has been filed." Thereafter, a showing of good cause is required. (Rule 4(c).) Certain juvenile dependency appeals and writs will continue to have shorter deadlines, even if the appointment is assisted. (See Cal. Rules of Court, rules 8.416(d)(2)
Under new Rule 7
, motions to consolidate must now include a statement "indicating whether the other party or parties agree with the proposed consolidation.” FDAP will be providing additional guidance down the road on this new rule.
Counsel should take time to review the updated rules, including some minor changes as to what constitutes the normal record on appeal. (Rule 3,
former Rule 6.) Also, be aware that many of the rules have been renumbered so be sure to update your templates accordingly.