You may recall that in a published case last October, Chodos v. Cole (2DCA5, B236361; petition for review pending, S207106), the dissenting opinion expressed the view that the appellant had failed to provide an adequate record because no reporter's transcript was designated for the appeal. That dissenting opinion stated: "In numerous situations, appellate courts have refused to reach the merits of an appellant‘s claims because no reporter‘s transcript of a pertinent proceeding or a suitable substitute was provided." The dissent then cited over a dozen supporting cases.
This precise statement and supporting authority recently appeared verbatim in another Division 5 matter in an order -- titled "Order re: Briefing" -- issued only 20 days after the appellate record reached the court of appeal. This pre-briefing order directs the parties to "to brief the issue of whether defendant's failure to designate a reporter's transcript or suitable substitute of the trial warrants affirmance based on the record's inadequacy." Also issuing the same day as this order was a "Settlement notice," explaining the court's policy regarding settlement conferences in civil appeals. Thus, it appears that this Order re: Briefing may be a new boilerplate order that Division 5 will issue anytime it appears that less than a full record has been designated.
In a similar vein, Second District Division 4 recently issued an interesting order in a fully briefed case with an upcoming argument date. This order struck all briefs in the case "because the current state of the record and briefing inhibit appellate review." The order then sets a whole new briefing schedule, giving appellant 30 days to file a new brief and supplemental record material. (The full text of the order as it appears on the docket is copied below). Again, this seems like a new sort of order focused on the state of the appellate record.
If anyone has had similar experiences, please send me an email.
Recent Division 4 order:
"The court vacates the January 18, 2013 calendar date in this case and strikes the parties' briefs because the current state of the record and briefing inhibit appellate review. (Cal. Rule of Court, rules 8.155(a), 8.204(a)(1)(C) & (e)(2)(B), 8.224(b).) Appellant has 30 days to file a new opening brief, accompanied by a supplemental Clerk's Transcript or Appellant's Appendix that includes the pleadings (Complaint, Cross-Complaint, and Answers) filed in the trial court. The opening brief must present all relevant and material facts and procedural history, and must accurately cite to all relevant pages in the Clerk's Transcript, Reporter's Transcript, Appellant's Compendium of Trial Exhibits (lodged with this court on January 3, 2013), and any supplemental Clerk's Transcript or Appellant's Appendix. Respondent shall have 30 days from the filing of appellant's new opening brief to file a new respondent's brief that provides a complete statement of relevant and material facts and procedural history and accurately cites to all relevant pages in the record on appeal. Respondent must lodge any trial exhibits cited in the brief that have not been included in Appellant's Compendium of Trial Exhibits. (For instance, appellant's exhibit 30 referenced on page 26 of the current version of respondent's brief has not been included in Appellant's Compendium of Trial Exhibits). Both parties are directed to review the correctness of the index of exhibits in Appellant's Compendium of Trial Exhibits and address any inconsistency with other parts of the record. (For example, plaintiff's exhibit 111 is referenced in the court's written statement of decision as a client list (CT 239), but on respondent's exhibit 111, included at page 11 in Appellant's Compendium of Trial Exhibits, it is shown as a 2004 spread sheet.) Appellant shall have 20 days from the filing of the new respondent's brief to file a new reply brief. After briefing is complete, the court will set a new calendar date."