California Rules of Court: New Rule 8.701 re: California Environmental Quality Act Affecting “Leadership” Project Filings - Effective July 1, 2014 (Part II)

Alaine Patti-Jelsvik, Esq.

California Appellate Rule 8.701, regarding filing and service of documents on appeal, went into effect on July 1, 2014. Below is a summary of important shortened timeframes that impact a California Environmental Quality Act (“CEQA”) appeal. (Please note that the rules under 8.700, et seq. only apply to “leadership” projects and not to the CEQA cases in general.)

All filing and service must be electronic: Electronic filing and service are required for all documents. All attorney-represented parties automatically agree to electronic service of process, and the two-day extension in CCP 1010.6(a)(1)(C)(4) does not apply. In the event that electronic service is not required under a separate rule, personal or overnight service is required. (Rule 8.701(a)-(c)).

Shortened time to appeal: The Notice of Appeal must be filed within five court days of the stamped date of the Entry of Judgment or the service date on the Notice of Entry of Judgment, whichever is EARLIER. (Rule 8.702(b)(1)).

Notice of Appeal content requirements: The Notice of Appeal must state that the judgment or order is governed by CEQA, and whether it pertains to the Sacramento Arena or other “leadership project,” and, if so, provide notice to the person or entity that applied for the project certification; that person or entity must pay the $100,000 fee and other costs to the Court of Appeal. (Rule 8.702(b)(2)(C) and Rule 8.705).

What extends the time to file an appeal: If a valid Notice of Motion or Motion for a New Trial, valid Notice of Motion or Motion to Vacate the Judgment, or a valid Motion to Reconsider an Appealable Order is filed, the time to file a Notice of Appeal on a CEQA case is extended by five court days from the date of service of the Order Denying the Motion or five court days after the denial of the motion, whichever is earlier. (Rule 8.702(c)(1)-(3)).

Filing a cross-appeal: Notice of Cross-Appeal must be filed within five court days after the Superior Court clerk serves notification of the first appeal. (Rule 8.702(c)(4)).

Expedited designation of Record on Appeal: The Designation of Record must be served and filed concurrently with the Notice of Appeal. (Rule 8.702).

Record on Appeal:

Written documents – Appendix required: CEQA cases do not allow for the designation of a clerk’s transcript. A Joint Appendix or separate Appellant’s and Respondent’s Appendix must be designated in accord with Rule 8.124. (Rule 8.702(d)(1)).

Oral proceedings: Reporter’s fees must be paid when filing the Designation of Record, if oral proceedings are designated. (Rule 8.702(d)(2)(A)).

Any application for the “Transcript Reimbursement Fund” must be served on all parties concurrently with the Notice of Designation and Notice of Appeal. (Rule 8.702(d)(2)(B)).

The court reporter must prepare, certify and file the Reporter’s Transcript within 10 days of notice by the Superior Court clerk. (Rule 8.702(d)(2)(C)).

Reduced time to cure default: The appealing party will only have two court days from the date of the Notice of Default, if that party fails to designate the record and/or pay the required fees when the Notice of Appeal is filed. Failure to cure the default within two court days will result in dismissal of the appeal. (Rule 8.702(d)(2)(D)).

Accelerated briefing schedule: The appellant’s opening brief is due within 25 days after the Notice of Appeal is served and filed, the respondent’s opening brief is due within 25 days after the opening brief is filed and the appellant’s reply brief is due within 15 days of the filed respondent’s brief. (Rule 8.702(f)(2)). Electronic filing of briefs is required. (Rule 8.702(f)(1)).

What if the Reporter’s Transcript is late?: If the Reporter’s Transcript is not filed at least five days prior to the due date of the appellant’s opening brief, then the appellant may file a brief with references to the matters in the Reporter’s Transcript, and then must file a revised, fully-cited and referenced version of the brief within 10 days after the Reporter’s Transcript is filed. (Rule 8.702(f)(3)(B)).

e-Briefs required: Unless otherwise ordered by the Court, within five days after each party has filed its brief, each party must submit an e-Brief that has hyperlinks to the Appendix, Reporter’s Transcript, the other parties’ briefs and cited decisions. Use the following link for an e-Brief demonstration. (Rule 8.702(f)(3)(C)).

Shortened “grace” period: If a party fails to timely file their brief, the time to cure that default is only two court days from the date of the clerk’s Notice of Default. (Rule 8.702(f)(5)).

No waiting for oral argument: Oral argument will be set within 45 days of the last reply brief filed. The clerk must give at least 15 days’ notice of the oral argument hearing date. The Court can shorten that time, and, if so, the clerk will call or e-mail the parties. (Rule 8.702(g)).

The foregoing is a true example of how fluid the California Rules of Court can be. In Part III of this article, I will cover the new CEQA writ rules. Stay tuned!

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.

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