(a) Notice of election.
(1) Unless the superior court orders otherwise on a motion served and filed within 10 days after the notice of election is served, this rule governs if:
(A) The appellant elects to use an appendix under this rule in the notice designating the record on appeal under rule 8.121; or
(B) The respondent serves and files a notice in the superior court electing to use an appendix under this rule within 10 days after the notice of appeal is filed and no waiver of the fee for a clerk's transcript is granted to the appellant.
(2) When a party files a notice electing to use an appendix under this rule, the superior court clerk must promptly send a copy of the register of actions, if any, to the attorney of record for each party and to any unrepresented party.
(3) The parties may prepare separate appendixes or they may stipulate to a joint appendix.
(Subd (a) amended effective January 1, 2016; previously amended effective January 1, 2005, January 1, 2007, January 1, 2008, and January 1, 2010.)
(b) Contents of appendix.
(1) A joint appendix or an appellant's appendix must contain:
(A) All items required by rule 8.122(b)(1), showing the dates required by rule 8.122(b)(2);
(B) Any item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues, including, for an appellant's appendix, any item that the appellant should reasonably assume the respondent will rely on;
(C) The notice of election; and
(D) For a joint appendix, the stipulation designating its contents.
(2) An appendix may incorporate by reference all or part of the record on appeal in another case pending in the reviewing court or in a prior appeal in the same case.
(A) The other appeal must be identified by its case name and number. If only part of a record is being incorporated by reference, that part must be identified by citation to the volume and page numbers of the record where it appears and either the title of the document or documents or the date of the oral proceedings to be incorporated. The parts of any record incorporated by reference must be identified both in the body of the appendix and in a separate section at the end of the index.
(B) If the appendix incorporates by reference any such record, the cover of the appendix must prominently display the notice "Record in case number:____ incorporated by reference," identifying the number of the case from which the record is incorporated.
(C) On request of the reviewing court or any party, the designating party must provide a copy of the materials incorporated by reference to the court or another party or lend them for copying as provided in (c).
(3) An appendix must not:
(A) Contain documents or portions of documents filed in superior court that are unnecessary for proper consideration of the issues.
(B) Contain transcripts of oral proceedings that may be designated under rule 8.130.
(C) Contain 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.
(D) Incorporate any document by reference except as provided in (2).
(4) All exhibits admitted in evidence, refused, or lodged are deemed part of the record, whether or not the appendix contains copies of them.
(5) A respondent's appendix may contain any document that could have been included in the appellant's appendix or a joint appendix.
(6) An appellant's reply appendix may contain any document that could have been included in the respondent's appendix.
(Subd (b) amended effective January 1, 2010; previously amended January 1, 2007, and January 1, 2008.)
(c) Document or exhibit held by other party.
If a party preparing an appendix wants it to contain a copy of a document or an exhibit in the possession of another party:
(1) The party must first ask the party possessing the document or exhibit to provide a copy or lend it for copying. All parties should reasonably cooperate with such requests.
(2) If the attempt under (1) is unsuccessful, the party may serve and file in the reviewing court a notice identifying the document or specifying the exhibit's trial court designation and requesting the party possessing the document or exhibit to deliver it to the requesting party or, if the possessing party prefers, to the reviewing court. The possessing party must comply with the request within 10 days after the notice was served.
(3) If the party possessing the document or exhibit sends it to the requesting party non-electronically, that party must copy and return it to the possessing party within 10 days after receiving it.
(4) If the party possessing the document or exhibit sends it to the reviewing court, that party must:
(A) Accompany the document or exhibit with a copy of the notice served by the requesting party; and
(B) Immediately notify the requesting party that it has sent the document or exhibit to the reviewing court.
(5) On request, the reviewing court may return a document or an exhibit to the party that sent it non-electronically. When the remittitur issues, the reviewing court must return all documents or exhibits to the party that sent them, if they were sent non-electronically.
(Subd (c) amended effective January 1, 2016; adopted effective January 1, 2005; previously amended effective January 1, 2007, and January 1, 2010.)
(d) Form of appendix.
(1) An appendix must comply with the requirements of rule 8.144 for a clerk's transcript.
(2) In addition to the information required on the cover of a brief by rule 8.204(b)(10), the cover of an appendix must prominently display the title "Joint Appendix" or "Appellant's Appendix" or "Respondent's Appendix" or "Appellant's Reply Appendix."
(3) An appendix must not be bound or transmitted electronically as one document with a brief.
(Subd (d) amended effective January 1, 2018; adopted as subd (c); relettered as subd (d) effective January 1, 2005; previously amended effective January 1, 2007, January 1, 2016, and January 1, 2017.)
(e) Service and filing.
(1) A party preparing an appendix must:
(A) Serve the appendix on each party, unless otherwise agreed by the parties or ordered by the reviewing court; and
(B) File the appendix in the reviewing court.
(2) A joint appendix or an appellant's appendix must be served and filed with the appellant's opening brief.
(3) A respondent's appendix, if any, must be served and filed with the respondent's brief.
(4) An appellant's reply appendix, if any, must be served and filed with the appellant's reply brief.
(Subd (e) amended effective January 1, 2007; adopted as subd (d); relettered effective January 1, 2005.)
(f) Cost of appendix.
(1) Each party must pay for its own appendix.
(2) The cost of a joint appendix must be paid:
(A) By the appellant;
(B) If there is more than one appellant, by the appellants equally; or
(C) As the parties may agree.
(Subd (f) amended effective January 1, 2007; adopted as subd (e); relettered effective January 1, 2005.)
(g) Inaccurate or noncomplying appendix.
Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file. The reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates this rule.
(Subd (g) relettered effective January 1, 2005; adopted as subd (f).)
Rule 8.124 amended effective January 1, 2018; repealed and adopted as rule 5.1 effective January 1, 2002; previously amended and renumbered as rule 8.124 effective January 1, 2007; previously amended effective January 1, 2005, January 1, 2008, January 1, 2010, January 1, 2016, and January 1, 2017.
Advisory Committee Comment
Subdivision (a)..Under this provision either party may elect to have the appeal proceed by way of an appendix. If the appellant's fees for a clerk's transcript are not waived and the respondent timely elects to use an appendix, that election will govern unless the superior court orders otherwise. This election procedure differs from all other appellate rules governing designation of a record on appeal. In those rules, the appellant's designation, or the stipulation of the parties, determines the type of record on appeal. Before making this election, respondents should check whether the appellant has been granted a fee waiver that is still in effect. If the trial court has granted appellant a fee waiver for the clerk's transcript, or grants such a waiver after the notice of appeal is filed, respondent cannot elect to proceed by way of an appendix.
Subdivision (a)(2) is intended to assist appellate counsel in preparing an appendix by providing them with the list of pleadings and other filings found in the register of actions or "docket sheet" in those counties that maintain such registers. (See Gov. Code, § 69845.) The provision is derived from rule 10-1 of the United States Circuit Rules (9th Cir.).
Subdivision (b)..Under subdivision (b)(1)(A), a joint appendix or an appellant's appendix must contain any register of actions that the clerk sent to the parties under subdivision (a)(2). This provision is intended to assist the reviewing court in determining the accuracy of the appendix. The provision is derived from rule 30-1.3(a)(ii) of the United States Circuit Rules (9th Cir.).
In support of or opposition to pleadings or motions, the parties may have filed a number of lengthy documents in the proceedings in superior court, including, for example, declarations, memorandums, trial briefs, documentary exhibits (e.g., insurance policies, contracts, deeds), and photocopies of judicial opinions or other publications. Subdivision (b)(3)(A) prohibits the inclusion of such documents in an appendix when they are not necessary for proper consideration of the issues raised in the appeal. Even if a document is otherwise includable in an appendix, the rule prohibits the inclusion of any substantial portion of the document that is not necessary for proper consideration of the issues raised in the appeal. The prohibition is intended to simplify and therefore expedite the preparation of the appendix, 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. The provision is adapted from rule 30-1.4 of the United States Circuit Rules (9th Cir.).
Subdivision (b)(3)(B) prohibits the inclusion in an appendix of transcripts of oral proceedings that may be made part of a reporter's transcript. (Compare rule 8.130(e)(3) [the reporter must not copy into the reporter's transcript any document includable in the clerk's transcript under rule 8.122].) The prohibition is intended to prevent a party filing an appendix from evading the requirements and safeguards imposed by rule 8.130 on the process of designating and preparing a reporter's transcript, or the requirements imposed by rule 8.144(e) on the use of daily or other transcripts instead of a reporter's transcript (i.e., renumbered pages, required indexes). In addition, if an appellant were to include in its appendix a transcript of less than all the proceedings, the respondent would not learn of any need to designate additional proceedings (under rule 8.130(a)(3)) until the appellant had served its appendix with its brief, when it would be too late to designate them. Note also that a party may file a certified transcript of designated proceedings instead of a deposit for the reporter's fee (rule 8.130(b)(3)).
Subdivision (d)..In current practice, served copies of filed documents often bear no clerk's date stamp and are not conformed by the parties serving them. Consistently with this practice, subdivision (d) does not require such documents to be conformed. The provision thereby relieves the parties of the burden of obtaining conformed copies at the cost of considerable time and expense and expedites the preparation of the appendix and the processing of the appeal. It is to be noted, however, that under subdivision (b)(1)(A) each document necessary to determine the timeliness of the appeal must show the date required under rule 8.104 or 8.108. Note also that subdivision (g) of rule 8.124 provides that a party filing an appendix represents under penalty of sanctions that its copies of documents are accurate.
Subdivision (e)..Subdivision (e)(2) requires a joint appendix to be filed with the appellant's opening brief. The provision is intended to improve the briefing process by enabling the appellant's opening brief to include citations to the record. To provide for the case in which a respondent concludes in light of the appellant's opening brief that the joint appendix should have included additional documents, subdivision (b)(5) permits such a respondent to present in an appendix filed with its respondent's brief (see subd. (e)(3)) any document that could have been included in the joint appendix.
Under subdivision (e)(2)-(4) an appendix is required to be filed "with" the associated brief. This provision is intended to clarify that an extension of a briefing period ipso facto extends the filing period of an appendix associated with the brief.
Subdivision (g)..Under subdivision (g), sanctions do not depend on the degree of culpability of the filing party-i.e., on whether the party's conduct was willful or negligent-but on the nature of the inaccuracies and the importance of the documents they affect.