(1) A notice designating documents to be included in a clerk's transcript must identify each designated document by its title and filing date or, if the filing date is not available, the date it was signed. The notice may specify portions of designated documents that are not to be included in the transcript. For minute orders or instructions, it is sufficient to collectively designate all minute orders or all minute orders entered between specified dates, or all written jury instructions given, refused, or withdrawn.
(2) Within 10 days after the appellant serves its notice designating a clerk's transcript, the respondent may serve and file a notice in superior court designating any additional documents the respondent wants included in the transcript.
(3) Except as provided in (b)(4), all exhibits admitted in evidence, refused, or lodged are deemed part of the record, but a party wanting a copy of an exhibit included in the transcript must specify that exhibit by number or letter in its notice of designation. If the superior court has returned a designated exhibit to a party, the party in possession of the exhibit must deliver it to the superior court clerk within 10 days after the notice designating the exhibit is served.
(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2005, January 1, 2007, and January 1, 2008.)
(b) Contents of transcript.
(1) The transcript must contain:
(A) The notice of appeal;
(B) Any judgment appealed from and any notice of its entry;
(C) Any order appealed from and any notice of its entry;
(D) Any notice of intention to move for a new trial or motion to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration of an appealed order, and any order on such motion and any notice of its entry;
(E) Any notices or stipulations to prepare clerk's or reporter's transcripts or to proceed by agreed or settled statement; and
(F) The register of actions, if any.
(2) Each document listed in (1)(A), (B), (C), and (D) must show the date necessary to determine the timeliness of the appeal under rule 8.104 or 8.108.
(3) Except as provided in (4), if designated by any party, the transcript must also contain:
(A) Any other document filed or lodged in the case in superior court;
(B) Any exhibit admitted in evidence, refused, or lodged; and
(C) Any jury instruction that any party submitted in writing and the cover page required by rule 2.1055(b)(2) indicating the party requesting it, and any written jury instructions given by the court.
(4) Unless the reviewing court orders or the parties stipulate otherwise:
(A) The clerk must not copy or transmit to the reviewing court the original of a deposition except those portions of a deposition presented or offered into evidence under rule 2.1040.
(B) The clerk must not include in the transcript the record of an administrative proceeding that was admitted in evidence, refused, or lodged in the trial court. Any such administrative record must be transmitted to the reviewing court as specified in rule 8.123.
(Subd (b) amended effective July 1, 2011; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2011.)
(c) Deposit for cost of transcript.
(1) Within 30 days after the respondent files a designation under (a)(2) or the time for filing it expires, whichever first occurs, the superior court clerk must send:
(A) To the appellant, notice of the estimated cost to prepare an original and one copy of the clerk's transcript; and
(B) To each party other than the appellant, notice of the estimated cost to prepare a copy of the clerk's transcript for that party's use.
(2) A notice under (1) must show the date it was sent.
(3) Unless otherwise provided by law, within 10 days after the clerk sends a notice under (1), the appellant and any party wanting to purchase a copy of the clerk's transcript must either deposit the estimated cost specified in the notice under (1) with the clerk or submit an application for, or an order granting, a waiver of the cost.
(4) If the appellant does not submit a required deposit or an application for, or an order granting, a waiver of the cost within the required period, the clerk must promptly issue a notice of default under rule 8.140.
(Subd (c) amended effective January 1, 2014; previously amended effective January 1, 2007, January 1, 2008, and July 1, 2009.)
(d) Preparation of transcript.
(1) Within the time specified in (2), the clerk must:
(A) Prepare and certify the original transcript;
(B) Prepare one copy of the transcript for the appellant; and
(C) Prepare additional copies for parties that have requested a copy of the clerk's transcript and have made deposits as provided in (c)(3) or received an order waiving the cost.
(2) Except as provided in (3), the clerk must complete preparation of the transcripts required under (1) within 30 days after either:
(A) The appellant deposits either the estimated cost of the clerk's transcript or a preexisting order granting a waiver of that cost; or
(B) The court grants an application submitted under (c)(3) to waive that cost.
(3) If the appellant elects under rule 8.121 to proceed with a reporter's transcript, the clerk need not complete preparation of the transcripts required under (1) until 30 days after the appellant deposits the estimated cost of the reporter's transcript or one of the substitutes under rule 8.130(b).
(4) If the appeal is abandoned or dismissed before the clerk has completed preparation of the transcript, the clerk must refund any portion of the deposit under (c) exceeding the preparation cost actually incurred.
(Subd (d) amended effective January 1, 2014; previously amended effective January 1, 2003, and January 1, 2007.)
Rule 8.122 amended effective January 1, 2014; repealed and adopted as rule 5 effective January 1, 2002; previously amended and renumbered as rule 8.120 effective January 1, 2007, and as rule 8.122 effective January 1, 2008; previously amended effective January 1, 2003, January 1, 2005, July 1, 2009, January 1, 2010, January 1, 2011, and July 1, 2011.
Advisory Committee Comment
Subdivision (a)..Subdivision (a)(1) allows a party designating documents for inclusion in the clerk's transcript to specify portions of such documents that are not to be included, e.g., because they are duplicates of other designated documents or are not necessary for proper consideration of the issues raised in the appeal. The notice of designation should identify any portion to be omitted by means of a descriptive reference, e.g., by specific page or exhibit numbers. This provision is intended to simplify and therefore expedite the preparation of the clerk's transcript, to reduce its cost to the parties, and to relieve the courts of the burden of reviewing a record containing redundant, irrelevant, or immaterial documents.
Subdivision (b)..The supporting and opposing memoranda and attachments to any motion to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration of an appealed order are not required to be included in the clerk's transcript under subdivision (b)(1)(D) but may be included by designation of a party under (b)(3) or on motion of a party or the reviewing court under rule 8.155.
Subdivision (b)(1)(F) requires the clerk's transcript to include the register of actions, if any. This provision is intended to assist the reviewing court in determining the accuracy of the clerk's transcript.
Subdivision (c)..Under subdivision (c)(2), a clerk who sends a notice under subdivision (c)(1) must include a certificate stating the date on which the clerk sent it. This provision is intended to establish the date when the 10-day period for depositing the cost of the clerk's transcript under this rule begins to run.
The superior court will make the determination on any application to waive the fees for preparing, certifying, copying, and transmitting the clerk's transcript.
Subdivision (d)..The different timelines for preparing a clerk's transcript under subdivision (d)(2)(A) and (B) recognize that an appellant may apply for and receive a waiver of fees at different points during the appellate process. Some appellants may have applied for and obtained an order waiving fees before receiving the estimate of the cost of the clerk's transcript and thus may be able to provide that order to the court in lieu of making a deposit for the clerk's transcript. Other appellants may not apply for a waiver until after they receive the estimate of the cost for the clerk's transcript, in which case the time for preparing the transcript runs from the granting of that waiver.
In cases in which a reporter's transcript has been designated, subdivision (d)(3) gives the clerk the option of waiting until the deposit for the reporter's transcript has been made before beginning preparation of the clerk's transcript.