1st District’s new local rules: a guide

APPELLATE ZEALOTS

On Aug. 23, the 1st District Court of Appeal issued a revised version of its local rules -- the first major overhaul since 2006. The new rules are available on the court's website. There are only a few major substantive changes, which are discussed individually below. Otherwise, the changes are cosmetic, but generally welcome.

Global changes and comparison chart

On a global but non-substantive level, the court: (1) reordered the rules so that they roughly track the sequence of stages of an appeal; (2) revised the format and language to be more user-friendly, and to reflect the possibility that parties will be self-represented on appeal; (3) added and updated citations to relevant provisions of the California Rules of Court; (4) added URLs for the web pages where referenced court forms may be found; and (5) deleted several rules (identified below) that have become obsolete.

The accompanying comparison chart reflects the reordering, and summarizes the minor substantive changes the court has made, as well as the content of new rules. Where the revision of a particular rule, or the addition of a new rule, involves substantive changes too complex to be summarized in the chart, they are discussed below.

Details of substantive changes

• Motions to Augment the Record (former rule 7, now rule 4):

(a) The new version of the rule expressly states that motions to augment may only be used to add material previously filed or lodged in trial court. This has always been true; the rule even cites a 1996 case that so holds. However, experience has shown that self-represented parties (and even some counsel) are not always aware of this limitation.

(b) The new version provides that in criminal and juvenile cases, if parts of the record that either are required or were designated for inclusion are omitted from the record, the court clerk or reporter can submit such omitted parts of the record to the Court of Appeal without any court order. The new version also retains, in clarified form and with reference to the applicable California Rules of Court, the provision that any party can file a request for correction of the omission with the superior court. This is an extremely useful provision for practitioners, as it means that an omission from the record of material that is required by rule or was designated for inclusion does not require a motion to augment. Instead, counsel in criminal and juvenile cases can informally alert the clerk or reporter, and counsel in all other cases need only file a notice with the superior court requesting supplementation of the record. In addition, when a party requests preparation of an omitted portion of the record and notifies the court of the request, the new version of local rule 11 grants an automatic extension of the requesting party's briefing deadline until 15 days after the omitted part of the record is filed.

(c) The new version retains the time limits given in the former version, but adds a provision that motions to augment "shall be submitted on the earliest date practicable."

(d) The new version slightly reduces the showing needed to obtain an augmented reporter's transcript. It is no longer necessary to "establish with some certainty" that the material is needed; one need only "explain why the transcript may be useful for the appeal."

(f) The new version retains the exhortation that each side should file only one motion to augment, but augments it with a separate paragraph noting that repeated motions to augment are strongly disfavored. The same paragraph provides that a motion to augment "shall" be made in good faith and not for the purpose of delay, and that filing such a motion on or close to the due date for a brief "may raise an inference that it was filed for the purpose of delay."

• Settlement conferences (former rule 3, now rule 9):

(a) The former version of the rule permitted a settlement conference justice to continue settlement conferences and make other orders "necessary to effectuate the conference." The new version appears to broaden that authority, providing that the justice "may conduct the conference as he or she deems appropriate."

(b) Both the new and former versions of the rule require that all parties and counsel attend the settlement conference with full settlement authority. The former version provided that exceptions to this requirement had to be approved in writing by the settlement conference justice. The new version requires that a party seeking an exception "must seek and obtain advance approval" by the settlement conference justice.

(c) The former rule gave the "supervising justice of the settlement conference program," as well as the Administrative Presiding Justice and the settlement conference justice, the authority to impose monetary sanctions for failure to comply with the rule. The new version retains the provision for sanctions, but deletes the reference to the "supervising justice of the settlement conference program."

• Stipulated reversal (former rule 4, now rule 10):

(a) The former rule required parties seeking a stipulated reversal to "provide a sufficient showing to support the findings required by Code of Civil Procedure section 128, subdivision (a)(8)." The new version states that a motion for stipulated reversal or to vacate a judgment "will be considered only if it satisfies the requirements" of that statute.

(b) The new version of the rule allows a motion for stipulated reversal to be supported by declarations of the parties, rather than only declarations of counsel.

(c) The new version of the rule eliminates "whether the judgment ... otherwise affects the public" from the list of factors that must be discussed in the declaration supporting the motion. However, such declarations still must indicate whether the judgment affects a significant number of non-parties.

• Electronic filing (former rule 16, now rule 12):

The electronic filing rule was adopted fairly recently, and it has not been extensively revised in the new version. The only changes are that a party submitting an appendix longer than 10 volumes now "should" (rather than "may") deliver it to the court on a CD rather than e-filing it, and an added requirement that in such a case, the party "shall file a notice of lodging via TrueFiling." The requirement that the clerk post a copy of the electronic filing rule on the court's website and deliver a copy to the Reporter of Decisions has been eliminated, presumably because all local rules are now posted on the website as a matter of course.

• Oral argument (NEW rule 13):

The former version of the local rules did not address oral argument, except for the rule permitting argument by telephone (former rule 13, now rule 14). The new rule codifies what have long been the court's general practices regarding oral argument, including provisions regarding waivers; scheduling of oral argument; the amount of time allotted; division of argument time between parties on the same side; and the recording of oral arguments.

• Focus letters and tentative opinions (NEW rule 15):

New rule 15(a) merely codifies the court's longstanding practice of issuing "focus orders or letters" before oral argument to "notify the parties about particular issues the panel is interested in discussing." New rule 15(b), providing for the issuance of tentative opinions before oral argument, at the discretion of the assigned panel, is new. Counsel who receive a tentative opinion in a case set for oral argument should read the rule carefully so as to understand their options. It is particularly important to be aware that oral argument in such a case will proceed as calendared unless all parties notify the clerk that oral argument is no longer desired. Thus, even if the tentative opinion rules in your favor, you must still plan to present argument unless your opponent is also willing to waive it.

• New authority prior to oral argument (NEW rule 16):

New rule 16 supplements rule 8.254 of the California Rules of Court by requiring submission of new authority letters "when the authorities become available and as far in advance of any scheduled oral argument as possible." As a practical matter, this means that counsel with an appeal pending have to be on the lookout for potentially useful new authority at all times after the conclusion of briefing. Practitioners who have been accustomed to waiting until their oral argument preparation to submit new authority letters will have to change their habits.

• Electronic devices in the courtroom (NEW rule 17):

The court's practice for many years was to require all persons entering the courtroom to divest themselves of all electronic devices before entering. In a welcome change, the new rule permits the use of laptops and tablets in the courtroom, if silenced, though only by counsel and self-represented litigants, and only to take notes or assist in presenting argument. Cell phones and other devices are still prohibited, except for assisted listening. Audio, video, and photography are still prohibited except as permitted under rule 1.150 of the California Rules of Court (and new local rule 18). Failure to comply may result in the violator being removed from the courtroom.

• Abbreviated opinions (NEW rule 19):

This new rule adopts a practice that has been in use in other appellate districts for some time. It permits the court to issue "a memorandum or other abbreviated form of opinion" in cases that either present a straightforward application of an unchallenged statute or controlling case law, or raise factual issues governed by the substantial evidence standard.

• Circuit-riding sessions (former rule 14, now rule 20):

The former version of the rule allowed the court to hold argument in a non-San Francisco location if there were enough cases from that location to make up a calendar. This rule was rarely implemented, if ever, after the advent of oral argument by telephone (see former rule 14; now rule 13). The new rule situates all arguments in the San Francisco courtroom "except that sessions may occasionally be held at educational institutions or elsewhere within the district."

Discontinued rules

Two former local rules -- former rule 2, regarding mediation, and former rule 10, regarding filing by fax -- have no equivalent in the new rules, as they have become obsolete. The court quietly discontinued its mediation program in 2013, but had left the governing rule on the books until this revision. (The court has retained its settlement conference procedure (former rule 3; now rule 9).) The advent of electronic filing (former rule 16; now rule 12), which is just as fast and far superior, has made fax filing unnecessary. 