New Rules 2005- General Appellate Procedures

GENERAL APPELLATE PROCEDURES
Topic New  Old Significant Changes / Comments
       
Definitions Rule 40    
Appellant, respondent, party 40(a) 40(c), (e) No substantive changes.
Gender, tense, number 40(b) 40(a) No substantive changes.
Judgment 40(c) 40(g) No substantive changes.
Must, may, may not, should, will 40(d) 40(d) Substitutes "must" for "shall" and adds definitions of "may not," "should," and "will."
Superior and reviewing courts 40(e) 40(b) No substantive changes.
Deletions and movements to other rules      
Serve and file 40.1 40(f) Moved from rule on "Definitions" (40) to "Service and Filing" (40.1).
Chief Justice and Presiding Justice None 40(h) Provision that "Chief Justice" or "Presiding Justice" includes persons acting in those roles is deleted as unnecessary.
Briefs None 40(i) New rules have no provision that "brief" includes petitions for review and rehearing and answers thereto. New rules specifically name those documents when applicable.
Register 70 40(j) Provisions on register of appeals and writs are in rule 70. No longer defined in rule 40.
Date of filing 40.1(b) 40(k) Provisions on when document is deemed filed are moved to rule 40.1(b) and changed substantively.
Recycled paper 40.2 40(l) Provisions moved from rule 40 "Definitions" to rule 40.2 "Recycled Paper."
Service and filing Rule 40.1    
Service 40.1(a)    
Method; whom to serve 40.1(a)(1) 40(e), (f) No substantive changes.  But now explicitly mentions service methods authorized by Code of Civil Procedure, rather than "by law."
Proof of service 40.1(a)(2) 40(f) No substantive changes. 
Filing 40.1(b)    
Date of receipt by clerk 40.1(b)(1) 40(k) No substantive changes.
Timeliness - general: receipt before due date 40.1(b)(2)   No substantive changes.
Mail filing as exception to above      
Priority or express mail as shown on postmark 40.1(b)(3)    (A) 40(k) Substantive change to "priority" or overnight from previous "certified" or overnight. The Appellate Advisory Committee does not comment on this.
Overnight carrier as shown on receipt 40.1(b)(3)  (B) 40(k) No substantive changes. 
Original proceedings not covered by 40.1(b)(3) 40.1(b)(4) New  
Recycled paper Rule 40.2    
Service or filing as certification of use of recycled paper 40.2 40(l) No substantive changes. 
Change of address or phone Rule 40.5    
Service and filing notice 40.5(a)    
Attorney or unrepresented party to notify court promptly in writing 40.5(a)(1) 40.5(a) Adds "promptly" to provisions.
Title and number of case;  Bar number 40.5(a)(2) 40.5(a) Adds title of case to required information.
All pending and concluded cases covered 40.5(b) 40.5(b) Now includes unrepresented parties as well as attorneys.
Appearance not conforming to address of record; multiple offices 40.5(c)    
Entry of appearance despite variance; subject to being struck if attorney fails to confirm 40.5(c)(1) 40.5(c) No substantive changes. 
Attorneys may have two or more offices as addresses of record, but only one per case 40.5(c)(2) 40.5(c) No substantive changes. 
Topic New  Old Significant Changes / Comments
Motions in reviewing court Rule 41    
Motion and opposition 41    
Motion, content 41(a)(1) 41(a) No substantive changes.
Points and authorities, supporting documents 41(a)(2) 41(a) No substantive changes.
Opposition due within 15 days after motion filed 41(a)(3) 41(a) Change: measured from date of filing of motion rather than service; 15 days instead of 10.
Disposition 41(b)    
After opposition or other response is filed or due 41(b)(1) 41(b) Adds "or other response" to allow for notice of intent not to oppose.
Hearing 41(b)(2) 41(b) No substantive changes.
Failure to oppose may be deemed consent to granting 41(c) 41(c) No substantive changes.  No longer mentions failure to oppose motion to dismiss appeal as implied abandonment; covered in existing language.
Motions before record filed Rule 42    
Motion to dismiss appeal must show by clerk's certification or declaration: 42(a)    
Nature of action and relief sought 42(a)(1) 42(a)(1) No substantive changes.
Name, address, phone of all attorneys and their parties; same for unrepresented parties 42(a)(2) 42(a)(2) Fills gap by requiring name, address, phone of attorneys and unrepresented parties, and parties attorneys represent.
Order or judgment, date of entry and service of notice of entry 42(a)(3) 42(a)(3) No substantive changes.
Factual basis of any extension of time to appeal under rule 3 42(a)(4) 42(a)(4), (5) Expands grounds. Former rule mentioned only motions for new trial.
Filing dates of all notices of appeal; courts in which filed  42(a)(5) 42(a)(6) Change: must show court in which appeal was "filed," rather than to which it was "taken."
Filing date of documents necessary to procure record 42(a)(6) 42(a)(7) Change:  must include filing dates of all documents necessary to procure record, not just the four listed in former rule.
Status of record preparation 42(a)(7) 42(a)(8) Change:  new provisions more general; former rule focused on record certification.
Other motions must show relevant facts 42(b) 42(b) No substantive changes. 
Applications in reviewing court Rule 43    
Service and filing 43(a) 43 No substantive changes.
Contents 43(b) 43 No substantive changes. Good cause or exceptional good cause is required.
Envelopes 43(c) 43 Limits addressed, stamped envelope requirement for parties to Court of Appeal; Supreme Court does not use.
Disposition by Chief Justice or Presiding Justice unless otherwise ordered 43(d) 43 No substantive changes. 
Form, number, cover of documents filed Rule 44    
Form 44(a) 44(a) No substantive changes. Eliminates provisions duplicative of rule 14.
Number of copies 44(b)    
If filed in Supreme Court: 44(b)(1)    
Petition for review, answer, reply, brief on merits, amicus curiae brief and answer, petition for rehearing and answer 44(b)(1)(A) 44(b)(1)(A), (B) Fills gap as to amicus brief and petition for rehearing, answers to these: original and 13.
Writ petition, response, reply 44(b)(1)(B) 44(b)(1)(C) No substantive changes: original and 10.
Habeas corpus 44(b)(1)(C) 44(b)(1)(C) To conform to practice, original and two.
Topic New  Old Significant Changes / Comments
Number of copies, Supreme Court filings (cont.)
Petition for review to exhaust state remedies, answer or reply, amicus letter under rule 28(g) 44(b)(1)(D) 44(b)(1)(E) Fills gap as to amicus letter in support of petition for review: original and eight.
Motion, opposition 44(b)(1)(E) 44(b)(1)(D) No substantive changes: original and eight. 
Application or any other document 44(b)(1)(F) 44(b)(1)(F) No substantive changes: original and one. Clarifies applicability to extension requests and other applications.
If filed in Court of Appeal: 44(b)(2)    
Brief, amicus brief and answer, proof of service on Supreme Court in civil cases 44(b)(2)(A) 44(b)(2)(B) Fills gap as to amicus brief and answer: original and four. Reduces Supreme Court copies to 4 (formerly 5). Per Appellate Advisory Committee, if ordered sealed, must comply with rule 15(c)(2).
Petition, answer/opposition, reply 44(b)(2)(B) 44(b)(2)(A) Fills gap as to reply: original and four.
Motion, opposition/response 44(b)(2)(C) 44(b)(2)(C) No substantive changes: original and three.
Application or other document 44(b)(2)(D) 44(b)(2)(D) No substantive changes: original and one.  Clarifies applicability to extension requests, other applications.
Separately bound supporting documents for petition or motion 44(b)(3) New Only one copy unless ordered otherwise.
Cover color 44(c)    
Chart of documents and colors 44(c)(1) 44(c) Fills gap as to appellant's (green), respondent's (yellow), reply (tan), and joint (white) appendices; answer to amicus brief (blue); reply to answer to writ petition (red).  Otherwise, no substantive changes.
Cross-appeals 44(c)(2) New Fills gap: yellow for combined AOB-RB and tan for combined RB-ARB.
Non-conforming documents 44(c)(3) 44(c) No substantive changes. 
Cover information 44(d) 44(d) No substantive changes, but simply refers to rule 14(b)(10)(D) instead of repeating its provisons.
Shortening and extending time Rule 45    
Computing time 45(a) 45(a) No substantive changes. 
Extending time 45(b) 45(c) No substantive changes. Simplified by blanket reference to extensions "required or permitted by these rules."
Shortening time 45(c) 45(d) No substantive changes. 
Application for extension 45(d)  
Factual showing; service 45(d)(1) 45.5(b) No substantive changes. 
Required statements      
Due date 45(d)(2)(A) 45.5(b) No substantive changes. 
Length of extension 45(d)(2)(B) 45.5(b) No substantive changes. 
Previous extensions 45(d)(2)(C) 45.5(b) No substantive changes. 
Cause  45(d)(2)(D) 45.5(b) No substantive changes. 
Relief from default 45(e) 45(e) Fills gap: no relief from failure to file timely request for certificate of probable cause.
No extension by superior court  45(f) 45(b) No substantive changes. 
Notice to party 45(g)    
To client in civil case 45(g)(1) 45(f) No substantive changes.
Class action 45(g)(2) 45(f) No substantive changes.
Party's address 45(g)(3) 45(f) No substantive changes.
Deletions and movements to other rules      
Time to file notice of appeal not to be extended 2(b), 30.1(a) 45(c) No substantive changes.
Time to file petition for review not to be extended 28(e)(2) 45(c) No substantive changes.
Time to grant or deny petition for rehearing in Court of Appeal not to be extended 25(c) 45(c) No substantive changes.
Topic New  Old Significant Changes / Comments
Deletions from former rule 45 (cont.)
Time to grant or deny petition for review Deleted 45(c) Covered in rule 28.2(b).
Time to grant or deny petition for rehearing in Supreme Court Deleted 45(c) Covered in rule 29.5(c)
Time for acts under rules 62 and 63(d) Deleted 45(c) Those rules repealed in 2003.
Relief from default for failure to file timely petition for review or rehearing Deleted 45(c) Covered in rules 25(b)(4), 28(e)(2), 29.5(b)
Appellate emergencies Rule 45.1    
Emergency extensions 45.1(a) 45.1 No substantive changes.
Extent and length of order 45.1(b) 45.1 No substantive changes.
Additional extension 45.1(c) 45.1 No substantive changes.
Extension policies and factors Rule 45.5    
Policies 45.5(a) 45.5(a) No substantive changes. 
Factors considered 45.5(b) 45.5(c)  
Prejudice to party 45.5(b)(1) 45.5(c)(1) No substantive changes.
Position of client and opponent 45.5(b)(2) 45.5(c)(2) No substantive changes.
Length of record 45.5(b)(3) 45.5(c)(3) Clarification: "Average" length confined to civil cases.
Issues 45.5(b)(4) 45.5(c)(3) No substantive changes.
Settlement negotiations 45.5(b)(5) 45.5(c)(4) No substantive changes.
Priority 45.5(b)(6) 45.5(c)(5) No substantive changes.
Whether counsel new to case 45.5(b)(7) 45.5(c)(6) No substantive changes.
Need to have others review document 45.5(b)(8) 45.5(c)(6) No substantive changes.
Counsel's other commitments 45.5(b)(9) 45.5(c)(7) No substantive changes.
Unavailability of counsel 45.5(b)(10) 45.5(c)(8) No substantive changes.
Other good cause 45.5(b)(11) 45.5(c)(9) No substantive changes.
Documents violating rules not to be filed Rule 46    
Clerk not to file documents violating rules 46 46 No substantive changes.
Sanctions to compel compliance by clerk or reporter Rule 46.5    
Interference with court proceedings, sanctions for 46.5 46.5 No substantive changes.
Courts of Appeal with more than one division Rule 47    
Assignments to equalize workload 47 47 Eliminates specific directions as to how to make assignments.  Reflects existing practice.
Substitution of parties or attorneys  Rule 48    
Substituting parties 48(a) 48(a) No substantive changes. 
Substituting attorneys  48(b) 48(b) To conform to practice, done by substitution rather than stipulation or motion.  To conform to statute and practice, need not be signed by former attorney.
Withdrawing attorney  48(c)    
Motion to withdraw 48(c)(1) 48(b) No substantive changes. 
Address of party 48(c)(2) New Attorney must provide address and phone of party if court grants withdrawal.
Notice to superior court  48(c)(3) 48(b) No substantive changes. 
Notice to Court of Appeal  48(c)(4) New Fills gap:  If motion made after review granted, Supreme Court clerk must notify Court of Appeal of any ruling on motion to withdraw.
Topic New  Old Significant Changes / Comments
Writ of supersedeas Rule 49    
Petition 49(a) 49 No substantive changes. 
Opposition 49(b) 49 No substantive changes. 
Temporary stay 49(c) 49 No substantive changes. 
Issuing the writ 49(d) 49 No substantive changes. 
Request for stay or supersedeas bound with petition 49.5    
Information on cover 49.5(a) 49.5 Cover must state "STAY REQUESTED."  New: cover must identify nature and date of matter to be stayed.
Additional information 49.5(b) New On cover or at beginning: trial court and department, name and phone of judge
Sanction 49.5(c) 49.5 No substantive changes. 
Substitute trial judge Rule 51    
Different trial judge when original is unavailable 51 51 No substantive changes. 
Presumption from record  Rule 52    
Presumption record is adequate to decide issues, unless no reporter's transcript and alleged error not on face of record 52 52 No substantive changes. 
Application and construction of rules Rule 53    
Kinds of proceedings 53(a) 53 No substantive changes. 
Liberal construction 53(b) 53 No substantive changes. 
Amendments to statutes 53(c) New Fills gap:  References in rules to statutes include subsequent amendments to the statutes.
Amendments to rules Rule 54    
Judicial Council amends; published in advance sheets; effective date 54 54 Effective date is the one ordered by Judicial Council, to reflect existing practice.  Provision on withdrawal of proposed amendment deleted as unnecessary.