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Fourth Appellate District Practice
division 1

CONTACT THE COURT

750 B Street, Suite 300
San Diego, CA 92101
Phone: (619) 744-0760
Fax: (619) 645-2495

Clerk's office hours: 9:00 a.m. to 5:00 p.m.

Clerk Administrator: Kevin Lane

 

GENERAL INFORMATION

 

NOTICE OF APPEAL

  • ADI notice of appeal forms: ADI's sample notices of appeal are based on Fourth District practices and are preferred.
    • General Forms & Samples page
      (under "Notice of Appeal Forms")
      • Criminal
      • Delinquency (Welf. & Inst. Code, § 601 or 602)
      • Dependency
      • Extended commitment - MDO, SVP, juvenile
      • Family Code section 7800 et seq.
      • LPS conservatorship
      • Not guilty by reason of insanity
    • Dependency Forms page
      (under "Notice of Appeal")
      • Delinquency (Welf. & Inst. Code, § 601 or 602)
      • Dependency
      • Extended commitment - MDO, SVP, juvenile
      • Family Code section 7800 et seq.
  • Late notice of appeal and/or CPC request: Division One requests that an application to file a late notice of appeal under In re Benoit (1973) 10 Cal.3d 72 be filed as a motion. The ADI Manual, chapter 2, § 2.113 et seq., gives guidance on "Remedies for Untimely or Defective Filing of Notice of Appeal and Failure To Obtain Certificate of Probable Cause."

 

EXTENSIONS, AUGMENTATIONS, CORRECTIONS, AND SETTLEMENTS

The ADI Manual, chapter 3, gives guidance on these topics.

  • Filing of applications and motions: This matter is governed by local rule 5 of the Fourth District Local Rules, mandating use of TrueFiling. See ADI announcement on this requirement.
  • Contents and form of juvenile transcripts: A Division One miscellaneous order prescribes additional contents of dependency transcripts (PDF). Another order requires for reporter's transcripts (PDF) for non-appealing dependency minor's counsel. San Diego County dependency and delinquency clerk's transcripts are now primarily on CD.
  • Forms
  • Correction of record procedures
    • Preliminary step – calling Court of Appeal: Attorneys who find pages missing should call the Court of Appeal before filing a record correction (completion) letter. Sometimes the court's copy will have the missing pages, and the court can copy those pages without need of a formal letter.
    • Where to send correction request: See ADI Cheat Sheet.
  • Augment request – timing: The court expects augment motions to be filed within 40 days or less of the filing of the record or the appointment order, whichever is later, in a criminal or delinquency case. The comparable period in a dependency case is 15 days or less, as required by rule 8.416(d)(2). The augment motion should not include a request for exhibits; these have separate requirements. Division One has issued formal orders to this effect, for both criminal and dependency cases (external site PDF links).
  • Checklist at conclusion of augment request: Attorneys should conclude augment requests with a list of documents requested. Do not just mention the documents in the text of the request. A checklist facilitates the clerk's preparation of the record and reduces errors. ADI's Forms & Samples and Dependency Forms pages have samples, "Augment Request," illustrating this format.
  • Combined augmentation and correction of record: If counsel needs to request both augmentation and correction of the normal record on appeal, counsel should do a combined augmentation request for all the needed records, instead of doing separate augment and correction requests.
  • Post-augment extension of time: Fourth District courts do not stay the appeal or automatically issue a time extension upon granting an augment request. If counsel needs an extension of time, counsel must request it with the augment. ADI's Forms & Samples and Dependency Forms pages have sample "Augment Request" forms illustrating this format.
  • Extension after "no further extensions": Even if a court issues a "no further extensions" order, counsel may still be granted an extension of time if he or she has good justification for it.
  • Settlement motion: Rule 8.346(a) states that a "party may serve and file in the superior court an application for permission to prepare a settled statement." Division One's preference is for the party to file first in the superior court. If the party encounters problems, such as the superior court not acting on the motion, counsel may pursue relief from the Court of Appeal.

 

SUPERIOR COURT FILES AND EXHIBITS

The ADI Manual, chapter 3, gives guidance on appellate records.

  • Viewing files and exhibits through ADI representative
    • Availability
      Downtown San Diego County: To save time and reduce expenses for non-San Diego attorneys, an ADI representative may be able to review court files and exhibits and make copies for the appointed attorney in San Diego County cases. If the appointed attorney wants to view the file or exhibit in person, the attorney should consult with the ADI staff attorney first.
      Imperial County and non-downtown branches of San Diego County: Because ADI does not travel regularly to Imperial County or the non-downtown branches of the San Diego County court, the appointed attorney may have to make the trip personally; however, to keep costs down, the attorney must first ask the clerk or exhibit custodian to send copies of needed documents.
    • Procedure: The appointed attorney must contact the staff attorney assigned to the case and provide case name, appeal number, superior court number, the matters to be viewed or copied, and the number of copies needed. Appointed attorneys should make such requests well in advance, especially if files or exhibits must be transferred from a branch court to the central court. (See Exhibits, below, for further information.)
    • ADI access to superior court files: A Division One miscellaneous order (PDF) gives ADI representatives access to superior court files, including confidential ones, to minimize travel for panel attorneys.
  • Viewing by appointed attorney: After consulting with ADI, the attorney should call the superior court to make arrangements and ascertain the location of the needed file or exhibit. Some may be stored off-site. The attorney may also be able to request the court clerk to send copies of documents.
  • Exhibits: ADI's article on procedures for handling exhibits (PDF) by Anna Jauregui-Law gives guidance on this matter. See preceding entry on viewing and copying files or exhibits.
    • Viewing exhibits
      Asking ADI to view and copy exhibits in downtown San Diego: When feasible, ADI will attempt to provide out of town counsel with a copy of documentary exhibits in the San Diego County downtown superior court. A miscellaneous order by the presiding justice gives ADI authorization to do so. Make arrangements with the assigned ADI staff attorney. ADI does not regularly send representatives to Imperial County or to non-downtown branches of San Diego County.
      Viewing by counsel of record: San Diego exhibits must be viewed at the court branch where the trial was held; there is no transfer of exhibits to the central court. The counsel of record should call in advance to make an appointment. Proof of appointment and valid ID is advisable.
    • Transmission to Court of Appeal: Division One follows rule 8.224 on the procedures for transmitting exhibits to the Court of Appeal.
      • ADI forms: ADI has sample forms on its Forms & Samples page under "Exhibits - Transmission Request Superior Court." That page has additional exhibit-related forms: "Exhibits–Late Transmission Court of Appeal" and "Exhibits–Motion to Unseal."

 

BRIEFS

The ADI Manual, chapter 5, gives guidance on briefing.

  • Default notice issued before appointment: If a default notice under rule 8.360, 8.412(d), or 8.416(g) had issued before counsel's appointment, Division One will rescind the notice upon appointment of counsel (a box to this effect will be checked on the appointment order). With the appointment, the court will give counsel 30 days to file the opening brief, not the usual 40 days.
  • Filing of briefs: The filing of briefs, including format and method, is governed by local rule 5 of the Fourth District Local Rules, mandating use of TrueFiling. See ADI announcement on this requirement.
  • Electronic service: Service by email on ADI and a number of Division One agencies is available and, where available, is required. Consult the ADI Cheat Sheet for current information. Email service may be direct or through TrueFiling.
  • Supplemental brief
    • Supplemental brief versus new opening brief: If a supplemental brief is submitted before the respondent's brief has been filed, Division One asks counsel to move to strike the AOB and file a new brief with the added issue. If it is submitted after the respondent's brief has been filed, a supplemental opening brief should be submitted, with a separate request for permission to file it. (Rule 8.200(a)(4).) ADI has sample forms (next).
    • Forms: ADI has samples on the Forms & Samples page under "Strike Brief and File New Brief Request" and "Supplemental Briefing Request." See also "Erratum Letter" and "Erratum Motion."
  • Sealed materials: The court will not accept sealed documents through TrueFiling. Panel attorneys must file only a redacted brief (sealed material excised) through TrueFiling. The unredacted brief must be filed on paper. (See Cal. Rules of Court, rule 8.46.) The court requests that counsel send a CD containing the unredacted brief with the paper version of the brief.
  • Pro per briefs: Except in non-dependency Wende cases, the court does not accept pro per briefs and will therefore send them to appointed counsel to handle.

 

ORAL ARGUMENT

The ADI Manual, chapter 6, gives guidance on oral argument. The court posts its calendars online.

  • Request: Oral argument must be requested in the time the court notice indicates. Division One has a form for requesting argument.
  • Late request: If the attorney decides to orally argue after the period for requesting oral argument has expired, a late request with a cover letter briefly explaining the delay may be filed.
  • Changing calendar position: If counsel's schedule is tight, the court may be able to accommodate requests to move oral argument from the morning to the afternoon calendar and vice-versa. Or it might grant a request to trail a case to later in the calendar.
  • Cancellation: A request for oral argument may be cancelled (the earlier the better). Thus attorneys unsure that oral argument will be necessary may choose to file a request within the time limit and later cancel it on deciding not to orally argue.
  • Oral argument time limit: Division One has a 15-minute default time limit for oral argument. Permission for a longer time must be specially requested. (See rule 8.256(c).) Division One has issued a miscellaneous order to this effect.
  • Associate counsel for oral argument: Preapproval from the court and ADI is required. The request must state that associate counsel is qualified and will be adequately prepared. If the notice is necessarily at the last minute, contact the Court of Appeal and ADI immediately. The court may grant a continuance or allow associate counsel, if qualified and prepared, to appear. See April 2012 ADI news alert PDF on this topic.
  • Directions: The court website has directions.
  • Lodging: The Sheraton, Symphony Hall (where the court is), may offer government rates.

 

PETITION FOR REHEARING

The ADI Manual, chapter 7, § 7.33 et seq., gives guidance on petitions for rehearing.

  • Pro per petitions: The court may not allow represented clients to file a pro per petition for rehearing, even in a Wende case. If there is time, however, and counsel has decided to proceed no further, the client can attempt it. Counsel may assist by asking to be relieved, so that the client is no longer represented. If counsel believes rehearing is necessary under rule 8.500(c)(2) to preserve the client's petition for review rights, counsel should do it; that is a legitimate ground for rehearing. (ADI Manual, chapter 7, § 7.35.)
  • Answer to petition for rehearing: Rule 8.268(b)(2) does not allow an answer to a petition for rehearing unless the court requests it.

 

CHANGE OF ADDRESS

  • Attorney: Attorneys must comply with rule 8.32(b) in sending notice of a changed address or telephone number. Counsel must notify ADI, too.
  • Client: The court wants to know the appellant's current address. To this end, if ADI receives notice the appellant has moved, it will inform both the court and appointed counsel of this new address. If counsel receives information (not from ADI) that the appellant has moved, counsel should inform the court and ADI of this address change.

 

SEE ALSO

Resources and Information on Court Website
Division Two Practice
Division Three Practice

 

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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.