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Rule 5.1. Appendices or joint appendix in lieu of clerk's transcript
(a) [Notice of election] Within 10 days after filing the notice of appeal, any party may serve and file with the clerk of the superior court notice of an election to proceed under the provisions of this rule, rather than under rule 5. This rule shall thereupon govern unless otherwise ordered by the superior court for good cause shown, upon noticed motion served and filed within 10 days after service of the notice of election. The notice of election and the notice to prepare the reporter's transcript may be included in the same document, and both notices may be included in the document containing the notice of appeal.
A copy of the notice of election and a copy of any notice to prepare a reporter's transcript in a case in which a notice of election is in effect shall be served on the clerk of the Court of Appeal.
(Subd (a) amended effective July 1, 1987; previously amended effective January 1, 1986.)
(b) [Contents of appellant's or joint appendix] An appendix prepared by the appellant or jointly by the parties to the appeal shall contain copies of
(1) those documents listed as items (1) through (5) in subdivision (d) of rule 5;
(2) such other documents listed in subdivision (d) of rule 5 as are essential to the proper consideration of the issues, including such documents as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised;
(3) the appellant's notice of election to proceed under the provisions of this rule;
(4) any motion opposed to proceeding under this rule, documents filed in connection with the motion, and the court's ruling thereon;
(5) in the case of a joint appendix, the stipulation designating its contents; and
(6) required indices.
(c) [Arrangement and form of appendix]
(1) The appendix shall conform to the requirements of subdivisions (a), (d) and (e) of rule 9. Document copies shall be conformed to show the date of filing in the trial court, if the clerk's date-stamp does not appear on them. An appendix shall be bound separately.
(2) The cover of an appendix shall contain the same material as the cover of a brief, but shall be prominently entitled "APPELLANT'S APPENDIX IN LIEU OF CLERK'S TRANSCRIPT" or "JOINT APPENDIX IN LIEU OF CLERK'S TRANSCRIPT" or "RESPONDENT'S APPENDIX" or "APPELLANT'S REPLY APPENDIX."
(3) All exhibits admitted in evidence or rejected are deemed a part of the appendix, whether or not reproduced therein. No papers may be incorporated by reference except the record on appeal of a case then pending before the same reviewing court or, as permitted by rule 11(b), the record on a prior appeal in the same action or proceeding.
(4) An appendix shall be filed in the reviewing court.
(d) [Joint appendix] Counsel have a duty to confer and attempt to reach an agreement concerning a possible joint appendix. A joint appendix shall be filed not later than the respondent's brief.
(e) [Appellant's appendix] An appellant's appendix shall be served and filed no later than the appellant's opening brief.
(f) [Respondent's appendix] A respondent's appendix may be served and filed no later than the respondent's brief, and may contain any document which could have been, but was not, included in the appellant's appendix.
(g) [Reply appendix] The appellant may serve and file a reply appendix no later than the time when a reply brief is due.
(h) [Costs] Each party shall, initially, bear the cost of preparing its separate appendices. The appellant shall, initially, bear the cost of preparing a joint appendix; where several parties appeal from the same judgment or any part thereof, or where there is a cross-appeal, the initial expense of preparing a joint appendix shall be borne equally by the parties appealing, or as the parties may agree. Subject to the provisions of rule 26(a) concerning the inclusion of matter not reasonably material, the actual expense of producing two copies of the appendix is taxable as costs.
(i) [Filing as certification; sanctions for nonconforming copies or for substantial underinclusion]
(1) Filing an appendix constitutes a representation by counsel that the appendix consists of true and correct copies of the papers in the superior court file. Willful or grossly negligent filing of an appendix containing nonconforming copies is an unlawful interference with the proceedings of the reviewing court, and subjects the counsel filing the brief, and the party represented, to monetary and any other appropriate sanctions.
(2) If an appellant's appendix is so inadequate that justice cannot be done without requiring inclusion of documents in the respondent's appendix which should have been in the appellant's appendix, or without the court's independent examination of portions of the original record which should have been in the appellant's appendix, the court may impose monetary sanctions.
(j) [Respondent may not require reporter's transcript] If the appellant has not given notice to prepare a reporter's transcript, the respondent may not require a reporter's transcript to be prepared. On suggestion of the respondent or on its own motion, the reviewing court may order augmentation of the record, as provided in rule 12, to prevent a miscarriage of justice.
(Subd (j) adopted effective January 1, 1988.)
Rule 5.1 amended effective January 1, 1988; adopted effective July 1, 1981; previously amended effective January 1, 1986, and July 1, 1987.
Drafter's Notes
1981-Rule 5.1, providing for the option of appendices in lieu of clerks' transcripts, and related changes (new rule 4.5 and amendments to rules 5, 8, 12 and 16) will permit an appellant to avoid delays that may arise when the clerk's office is preparing a transcript on appeal. In some instances, it may prove more economical than having the clerk prepare a transcript. Key aspects of the new elective procedure are:
The appendix method should produce more selectivity in the reproduction of documents, as it will not be necessary to designate the contents of a clerk's transcript before briefing. Ideally, counsel using this method will determine, while briefing the case, which documents are relevant to the points raised on appeal and include only those documents in the appendix.
If the appellant elects the appendix method, a notice to that effect is served and filed within the same time as is allowed for designating the contents of a clerk's transcript.
(Rule 5.1(a).) The election is binding on both parties unless otherwise ordered for good cause, on a motion served and filed within 10 days after service of the election.
A copy of the notice of the election would normally not be sent to the Court of Appeal in advance of the filing of the appellant's appendix or a joint appendix.
Rule 5.1 contemplates that the appendix will normally be prepared by photocopying counsel's copies of documents which were filed in the superior court; it is counsel's responsibility to assure that the copies are identical to the originals in the superior court file, and are conformed to show dates of filing. If counsel's office file copy will not reproduce legibly, or if a document has been the subject of numerous amendments by interlineation, counsel must copy the court's filed original of the document. Except for its cover and the addition of some items peculiar to an appendix, the appendix resembles a clerk's transcript in form and content.
The rule requires counsel to confer on the possibility of a joint appendix; this requirement could be satisfied by a telephone conference in which a good faith effort is made to agree.
Augmentation or correction of the record filed in the reviewing court is facilitated by new rule 4.5 which provides, in substance, that the entire superior court file is the clerk's record on appeal-not merely that part in the transcript or the appendices. Rule 12 governs augmentation and correction.
The appendix filing date is tied to that of the corresponding brief. If an appendix is substituted for the clerk's transcript but there is still a reporter's transcript, then time for the first brief runs from filing of the reporter's transcript alone. If there is an appendix and no reporter's transcript, however, the notice of election to use the appendix method must be used to measure the due date of the opening brief; and 70 days thereafter are allowed to approximate the normal time for preparation of transcripts plus normal briefing time.
1985-Rule 5.1 has been amended to permit any party to elect that the appendix method be used in lieu of a conventional clerk's transcript. Until the amendment, only the appellant could make the election. Under a provision of the rule that remains unchanged, any party aggrieved by the election may seek relief by a noticed motion.
1987-The council amended rule 5.1(a) to require the party electing the appendix method to serve a copy of the notice of election and of any designation of a reporter's transcript on the clerk of the Court of Appeal.
1988-The council amended rule 5.1 to conform the appendix method (in lieu of a clerk's transcript) to the longstanding provisions of rule 5(f), which prevent a respondent from compelling preparation of a reporter's transcript if the appellant did not order one.
