California Courts of Appeal: When Preparing an Appellate Brief, Prep the Record, then Stick to It.

The California Rules of Court require the appellant to prepare an adequate record on appeal. This must include items filed or lodged with the trial court that support the issues on appeal. All references to facts or procedural events mentioned in the brief must be supported with a citation to the record.

An inadequate record, or an improper brief including facts without proper citations to the record, hurts an appellant’s argument. These deficiencies may also invite the Court on its own motion, or the respondent, to move to strike the brief or record.

In California, by court rules and by judicial decision, an appellate court may disregard statements not supported by proper citations to the appellate record. Doppes v. Bentley Motors Inc., 174 Cal. App. 4th 967, 990 (2009). C.R.C. Rule 8.204(e)(2)(B).

The appellate brief nitty gritty
Established appellate standards dictate that documents and facts not presented to the trial court are not properly part of the record on appeal and cannot be considered on appeal. Pulver v. Avco Financial Services, 182 Cal. App. 3d 622 (1986). Statements, based on improper matter, are disregarded by the appellate court.

The appendix must only include documents that were filed or lodged, or exhibits which were offered, received or refused by the trial court. The Court in Doppes, at 988, elaborated on this point as follows:

“Generally speaking, the appendix must contain only documents that were filed or lodged with the superior court. (Cal. Rules of Court, rules 8.122(b)(3), 8.124(b)(1), (2)). California Rules of Court, rule 8.124(g) states: ‘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.’”

Motions to strike
It is not uncommon for respondent’s counsel to move to strike a brief that lacks citations to the record, includes mistaken or misleading citations or where it includes materials in the record that were not before the trial court at the time of decision or are immaterial to the issues on appeal. See Doers v. Golden Gate Bridge, Highway & Transp. Dist., 23 Cal. 3d 180 at 184 (1979) and Kendall v. Allied Investigations Inc., 197 Cal. App. 3d 619 at 625 (1988). In cases that grossly misstate facts with erroneous citations to the record or where the record includes inappropriate items, an appellant might face a motion for sanctions, as well.

Filing a motion to strike the opening brief for such violations may be the most efficient way for a respondent to streamline the subject on appeal and get clear issues and a proper record. A motion to strike may be needed where the errors are so extensive or the record is so convoluted with improper or unnecessary material that it complicates the effort needed by respondent’s counsel to address the core issues on appeal.

The Court may order on its own motion or may require an appellant to move to strike the brief and move for leave to file a corrected brief, which causes additional expense and delay. However, the rules and case law are in place to regulate and control appellate proceedings and promote appellate judicial efficiency.

If the errors in the opening brief are minor and not pervasive, addressing them as a point of argument in the respondent’s brief with a correct citation to where the information appears in the record, if it does appear, is a better approach, if it inures to the benefit of the respondent’s argument.

The onus is on the attorney
Let this discussion be a lesson to attorneys just entering appellate practice. It is incumbent on the appellant to prepare a proper record on appeal that will support the issues and arguments properly brought before the Court with adequate and correct citations to the record and legal authorities supporting each point. The Court will not search the record to see if what is stated in the brief is asserted “somewhere” in the record.

As the California Court of Appeal Second Appellate District states in its Notice to Litigants: “An appellant waives or forfeits any issue not coherently presented in the Appellant’s Opening Brief.” And, as one appellate court wrote a few years ago: “When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” Protect Our Water v. County of Merced (2003) 110 Cal. App. 4th 362, 364.

This article was published on August 27, 2014 in The Recorder, California's leading legal news and analysis publication. You can access this article here: When Preparing an Appellate Brief, Prep the Record, then Stick to It.

If you have any questions or need assistance with preparing and filing your appeal, please do not hesitate to contact me directly. Counsel Press provides a full spectrum of appellate services. My colleagues and I at Counsel Press’ office in Los Angeles specialize in rule-compliant appellate filings (including electronic filings and electronic submissions) in the California Supreme Court and Court of Appeal, the United States Circuit Court of Appeals and the United States Supreme Court.

Tagged: Appellate Practice, California Court of Appeal, Appellate Procedure, Litigation