New Rules for Writ Petitions and Delinquency Appeals

The Judicial Council has announced its annual recodification of the rules of court concerning appeals. This time, the amendments focus on juvenile case, habeas petitions, and other petitions for extraordinary writ. The new rules go into effect on January 1, 2005. Changes in dependency cases are discussed in another article.

Juvenile appeals. New rules 37 through 38.6 govern juvenile appeals. (Cal. Rules of Court, new rule 37(a)(1).) New rule 37(b) codifies existing law concerning the confidentiality required in juvenile cases. New rule 37.1 lists more clearly the normal record on appeal. New rule 37.2(e)(1) states that an omission in the record can be corrected without a court order in the same manner as a criminal appeal, referring to rule 32.1(b) (former rule 35(e)). New rule 37.2(e)(2) states the record can be augmented in the same manner as any other appeal, citing rule 12.

The opening brief is still due 40 days after the record is filed. (New rule 37.3(b)(1).) And the reply brief is still due 20 days after the respondent's brief is filed. (New rule 37.3(b)(3).) If the opening brief or respondent's brief is not filed on time, the parties have 30 days to file the brief under rule 17(a). (New rule 37.3(b)(5).) An extension of time can be granted for good cause. (New rule 37.3(c).) The brief must be served on the attorney general, district attorney, superior court, and the district appellate project. (New rule 37.3(d).) The same rules in criminal appeals apply to juvenile appeals concerning the content, form, and length of the brief. (New rule 37.3(a), citing rule 33(a) & (b).)

Habeas corpus petitions. The rules for filing a habeas corpus petition in the appellate courts are set forth in new rule 60. Petitions filed by attorneys must be accompanied with a memorandum of points and authorities. (New rule 60(a)(2) & (b)(2).) The new rule more clearly explains how to present exhibits. (New rule 60(b)(3) - (b)(6).) Exhibits must be tabbed and consecutively paginated. (New rules 56(d)(1)(A), 60(b)(5).) Each volume cannot be longer than 300 pages. (New rule 56(d)(1)(A).) If the exhibits are filed in a volume separate from the petition and the points and authorities, only the original exhibits (without any copies) shall be filed in the court of appeal, unless the court's local rules require otherwise (there are no applicable local rules in the Sixth District Court of Appeal). (New rule 44(b)(3).) If the petition is filed in the Supreme Court in a volume separate from the exhibits, you must file two copies of the exhibits with the original. (New rule 44(b)(1)(C).) A copy of the exhibits must be delivered to the parties, but it does not appear the exhibits need to be sent to the superior court. (See new rule 56(f)(1) [need not serve respondent court]; but see new rule 56(a) [except for rule 56(d) (see rule 60(b)(4)), rule 56 does not apply in habeas proceedings].)

The new rules provide that an informal response may be filed within 15 days of a request by the court, unless a court order specifies otherwise. (Rule 60(d)(2).) An informal reply may be filed within 15 days of the response, unless the court orders otherwise. (Rule 60(d)(3).) Note that briefs filed in habeas proceedings are NOT deemed filed on the date it is postmarked, (New rule 40.1(b)(4).)

If you are requesting a stay, you must display "prominently" on the cover "STAY REQUESTED," and identify the nature and date of the proceeding to be stayed. (Amended rule 45.5(a).) You must also identify on the cover or in the beginning of the text the trial court and department, the name of the judge and the telephone number of the judge. (Amended rule 45.5(b).) If the petition is filed with an appeal pending, you should also state on the cover that a related appeal is pending, and in the first paragraph of the petition the appeal's title, the trial court docket number, and the appellate court docket number. (See new rule 56(b)(3).)

Appeals from the superior court granting habeas corpus relief is governed by new rule 39.2. It mostly repeats old rule 50.

Petitions for writ of mandate or prohibition. The rules described above concerning habeas corpus petitions also apply to petitions for petitions for writ of mandate, prohibition, or certiorari in state court. (See new rules 40.1(b)(4), 56(b) & (d).) However, an informal response or reply is due in 10 days, unless the court orders otherwise. (New rule 56(g).) If the court issues an order to show cause or an alternative writ, the return is due in 30 days and the reply is due in 15 days, unless of course the court orders otherwise. (New rule 56(h).) The papers must be served on the respondent (usually the superior court) and the real parties in interest. (New rule 56(f).) A petition for writ of mandate, prohibition, or certiorari can be no longer than 14,000 words. (New rule 56(b)(6), citing rule 14(c).)

Other changes. Old rule 40(k) declared a brief or petition for rehearing or review filed on the date postmarked if it were mailed certified or overnight express. New rule 40.1(b)(3) now provides that the brief is deemed filed on the date postmarked if sent priority or express mail through the United States Postal Service or overnight express through a private courier. Old rule 41(a) requiring serving all parties of papers filed in the appellate court is now found in new rule 40.1(a).

Rule 40.5 has been amended to require the attorney or party submitting a notice of change of address or telephone number to specify the cases pending before the court. Rule 48(b) has been amended to no longer require the signature of the attorney of record when a party seeks to substitute counsel.

Rule 41(a) has been amended to allow 15 days for filing opposition to a motion in the appellate court, instead of 10 days.

Rule 978(a)(3) has been amended to require a request to publish an opinion to be filed in the court of appeal within 20 days after the opinion is filed. Requests to depublish an opinion must still be filed in the Supreme Court. (Rule 978(c).)

Rules concerning appeals from orders establishing conservatorships can be found at new rule 39. Rules 49 and 49.5 have been amended to make it much more clear how to proceed with a petition for writ of supersedeas, though there are no substantive changes.

View the new rules

November 23, 2004

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