Miscellaneous Orders
MISC. ORDER 2008-001
This order supersedes Miscellaneous Order 2006-006 and subsequent Amended Miscellaneous Order 2006-006 effective October 2, 2006, Miscellaneous Order 2006-016, Miscellaneous Order 2007-001, and Miscellaneous Order 2007-009, all relating to the implementation of the Mediation Program adopted by the Court of Appeal, Third Appellate District. (See Ct. App. Third Dist., Local Rules of Ct., rule 1, Mediation in Civil Appeals (adopted eff. October 2, 2006, and amended eff. March 2, 2007).)
BY THE COURT:
Upon filing of any civil notice of appeal, the provisions of rules 8.121 and 8.216 of the California Rules of Court requiring designation of the record and payment of estimated costs for preparation of the record or the filing of a proposed briefing sequence are suspended, pending this court's decision to select or not select the civil appeal for mediation. If a civil appeal is selected for mediation, then the suspension of rules 8.121 and 8.216 remains in effect until completion of mediation. If a civil appeal is not selected for mediation, the coordinator of the Mediation Program must concurrently notify the parties, the superior court, and this court, in writing, that suspension of rules 8.121 and 8.216 are terminated. The parties' obligation to comply with the requirements of rules 8.121 or 8.216 commences as if notice of appeal was filed on the date specified in the notification.
If the parties stipulate to placement of a civil appeal in the Mediation Program, then upon the superior court's timely receipt of its copy of that stipulation, the provisions of rules 8.121 and 8.216 requiring designation of the record and payment of the estimated costs of preparation of the record or the filing of a proposed briefing sequence are suspended.
If this court accepts the stipulation and refers the case for mediation, suspension of rules 8.121 and 8.216 remains in effect until completion of mediation. If the case is not referred to mediation, the coordinator of the Mediation Program must concurrently notify the parties, the superior court, and this court, in writing, that suspension of rules 8.121 and 8.216 are terminated. The parties' obligation to comply with the requirements of rules 8.121 or 8.216 commences as if notice of appeal was filed on the date specified in the notification.
If completion of mediation does not result in disposition of the appeal, the coordinator of the Mediation Program must, within 10 days after notice of completion of the mediation, notify the parties, the superior court, and this court, in writing, that suspension of rules 8.121 and 8.216 are terminated. The parties' obligation to comply with the requirements of rules 8.121 or 8.216 commences as if notice of appeal was filed on the date specified in the notification.
Nothing in this order prohibits the superior court from collecting the deposit required by section 68926.1 of the Government Code and by rule 8.100(b)(2) of the California Rules of Court.
Any appeal taken from a judgment or order entered in a conservatorship proceeding is exempt from this court's Appellate Mediation Program. Any appeal taken from a judgment or order entered in an action brought pursuant to Public Resources Code sections 21167, 21168, or 21168.5, to challenge acts, decisions, determinations or findings of a public agency for noncompliance with the California Environmental Quality Act, is also exempt from this court's Mediation Program. Appeals in these cases are not subject to the automatic stay of record designation or preparation otherwise provided in Local Rule 1. However, nothing in this order shall preclude the parties from stipulating to participation in the Mediation Program.
Dated: January 2, 2008
SCOTLAND, P.J.
MISC. ORDER 2007-016
BY THE COURT:
As dictated by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, this intermediate appellate court is bound by the decisions issued by the California Supreme Court in People v. Black (July 19, 2007, S126182 ___ Cal.4th ___ (Black II)) and People v. Sandoval (July 19, 2007, S148917 ___ Cal.4th ___ (Sandoval)).
IT IS THEREFORE ORDERED that, in any case in which appellant’s opening brief has been filed, this court shall not accept for filing any supplemental briefing challenging Black II and Sandoval on federal constitutional grounds. Appellants shall be deemed to have challenged the decisions in Black II and Sandoval on any such federal constitutional grounds, and to have thereby preserved the issues for petition for review to the California Supreme Court and petitions for appellate or collateral review by the federal courts.
Dated: July 26, 2007
SCOTLAND, P.J.
MISC. ORDER 2007-003
BY THE COURT:
In pending appeals in which an appellant’s opening brief was filed prior to the date this order is issued, and in which an opinion has not yet been filed, an application for leave to file a supplemental brief shall not be required before filing of a supplemental brief arguing, based on the decision of the United States Supreme Court in Cunningham v. California, (No. 05-6551. January 22, 2007, ___ U.S. ___; ___ S.Ct. ___; ___ L.Ed.2d ___; 2007 WL 135687; 2007 U.S.LEXIS 1324; 2007 DJDAR 965), that imposition of the upper term is unconstitutional. Henceforth, appellants shall not submit for filing any application for leave to file a supplemental brief challenging imposition of the upper term premised on Cunningham.
Any supplemental appellant’s opening brief submitted pursuant to this order shall be served and filed on or before February 23, 2007. If a supplemental brief is filed pursuant to this order, the time for filing respondent’s brief shall be extended by 30 days.
If respondent’s brief has already been filed, respondent shall have leave to file a supplemental respondent’s brief within 15 days of filing of the supplemental opening brief, and any appellant’s supplemental reply brief shall be served and filed within 10 days of filing of the supplemental respondent’s brief.
Dated: January 24, 2007
SCOTLAND, P.J.
