Highlights of Rule Changes Effective
January 1, 2005

Definitions
Rule 40

General: Some deletions and movement of definitions to other rules. See chart for list.

Changes in terminology: Substitutes “must” for “shall” and adds definitions of “may not,” “should,” and “will.” (40(d).)

Service and filing
Rule 40.1

Substantive change in mail filing: Filing is timely if postmark shows mailing by priority or express mail before deadline expired. (40.1(b)(3)(A).) This provision does not apply to writs. (40.1(b)(4).)

Recycled paper
Rule 40.2

No substantive changes.

Change of address or phone
Rule 40.5

Time to notify – clarification: Adds “promptly” to requirement of notification. (40.5(a)(1).)

Addition to required content: Title of case must be included. (40.5(a)(2).)

Unrepresented party – addition to cases affected by notice: New address or phone will be deemed to apply to all pending and concluded cases involving an unrepresented party, as well as all of an attorney’s cases.

Motions in reviewing court
Rule 41

Change in due date for opposition: Must be filed within 15 days of filing of motion. (41(a)(3).) (Former provision was 10 days after service.)

Motions before record is filed
Rule 42

Changes in required content of clerk’s certification or declaration included with motion to dismiss appeal:

• Background information: Must include name, address, phone of attorneys and unrepresented parties, and identification of the parties each attorney represents. (42(a)(2).)

• Extension of time to appeal: Must show factual basis for any extension of time to appeal under rule 3 (not just motion for new trial). (42(a)(4).)

• Where notice of appeal filed: Must show court in which all notices of appeal were filed (rather than to which the appeals were taken). (42(a)(5).)

• When documents to procure record filed: Must include filing dates of all documents necessary to procure record (not just the four listed in former rule). (42(a)(6).)

• Record preparation: Requirement now stated in general terms of “status of record preparation” (rather than certification of record). (42(a)(7).)

Applications in the reviewing court
Rule 43

Envelopes: Requirement that self-addressed, stamped envelopes for mailing to parties must be included with application is limited to Court of Appeal; Supreme Court does not use. (43(c).)

Form, number, and contents of filed documents
Rule 44

Changes in number of copies of documents to be filed in Supreme Court (44(b)(1)):

• Amicus brief, petition for rehearing, and answer to these: Fills gap by specifying original and 13. (44(b)(1)(A).)

• Habeas corpus petition, opposition, reply: Fills gap by specifying original and two. (44(b)(1)(C).)

• Amicus curiae letter in support of petition for review: Fills gap by specifying original and eight. (44(b)(1)(D).)

Changes in number of copies of documents to be filed in Court of Appeal (44(b)(2)):

• Amicus curiae brief and answer: Fills gap by specifying original and four. (44(b)(2)(A).)

• Supreme Court copies of Court of Appeal briefs in civil cases: Reduced to four (formerly was five). (44(b)(2)(A).)

• Reply to opposition to petition: Fills gap by specifying original and four. (44(b)(2)(B).)

• Separately bound exhibits and other supporting documents for petition or motion: Clarifies only one copy needed unless court specifies otherwise. (44(b)(3).)

Changes as to color of cover (44(c)):

• Appendices: Fills gap by specifying green for appellant’s, yellow for respondent’s, tan for appellant’s reply, and white for joint appendix. (44(c)(1).)

• Answer to amicus curiae brief: Fills gap by specifying blue cover. (44(c)(1).)

• Reply to opposition to writ petition: Fills gap by specifying red cover. (44(c)(1).)

• Cross appeals: Fills gap by specifying yellow cover for combined respondent’s brief and appellant’s opening brief and tan cover for combined respondent’s brief and reply brief. (44(c)(2).)

Shortening and extending time
Rule 45

Failure to file timely request for certificate of probable cause: No relief from default available. (45(e).)
The rule may overstate existing law. The Advisory Committee comment cites Inre Chavez (2003) 30 Cal.4th 643, 652-653, for the proposition that relief from default isnot available for failure to file a timely request for a certificate of probable cause. However, Chavez involved a situation in which the only ground for appeal was an attackon the validity of the plea. The certificate of probable cause was therefore necessary tomake the appeal operative and to vest jurisdiction in the Court of Appeal, and indeed theSupreme Court opinion relied heavily on the jurisdictional nature of a timely notice ofappeal. It did not address the situation in which the Court of Appeal already hasjurisdiction because the notice of appeal complied with rule 30(b)(4) by stating non-certificate grounds, and the appellant is seeking to expand the appeal to include certificategrounds by asking for relief from default for failure to file a timely request for acertificate. The rationale of neither Chavez nor People v. Mendez (1999) 19 Cal.4th1084, necessarily forecloses such relief; the courts have not yet addressed that situation.

Appellate emergencies
Rule 45.1

No substantive changes.

Extension policies and factors
Rule 45.5

No substantive changes.

Documents violating rules not to be filed
Rule 46

No substantive changes.

Sanctions to compel performance by clerk or reporter
Rule 46.5

No substantive changes.

Courts of Appeal with more than one division
Rule 47

To reflect existing practice, eliminates specific directions on how to make assignments.

Substitution of parties or counsel
Rule 48

Change of counsel: To conform to practice, change is to be by substitution rather than stipulation or motion. To conform to statute and practice, the substitution must be signed by party and new attorney, but need not be signed by former attorney. (48(b).)

Withdrawing counsel’s duty: If attorney’s motion to withdraw is granted, withdrawing attorney must furnish Court of Appeal with address and phone number of client. (48(c)(2).)

Attorney’s motion to withdraw after review granted: Supreme Court clerk must notify Court of Appeal of any ruling on motion to withdraw. (48(c)(4).)

Writ of supersedeas
Rule 49

No substantive changes.

Request for stay or supersedeas bound with petition or other document
Rule 49.5

New requirement for cover: Must identify nature and date of act to be stayed. (49.5(a)(2).)

New requirement for cover or beginning of text: Trial court and department, name and phone number of judge. (49.5(b).)

Substitute trial judge
Rule 51

No substantive changes.

Presumption record is adequate
Rule 52

No substantive changes.

Application and construction of rules
Rule 53

No substantive changes.

Amendments to rules
Rule 54

Effective date: To reflect existing practice, date is the one ordered by the Judicial Council.