When a Petitioner files a Petition for Writ of Administrative Mandamus or Mandate, the Superior Court schedules a trial setting conference and then a trial. However, the “trial” on a petition for writ of administrative mandate is not really a trial. There is no voir dire, jury, opening and closing arguments, examination of witnesses, or marking or introduction of exhibits. It’s really a hearing, similar to the hearing on an appeal before the Court of Appeal. The briefs, citing to the administrative record, are generally far more important than the “trial.” Everything you want the trial court to consider should be in the Administrative Record, which must be lodged at least five days before the “trial” (Cal. Rules of Court, Rule 3.1140), although Judges’ preferences vary as to when they want the administrative record lodged. You can call the clerk to ascertain your Judge’s preference.
Before I began working on a massive bankruptcy litigation in the Eastern District of California, I’d never heard of the term “Docket Control Number.” The Bankruptcy Court for the Eastern District of California appears to be the only federal court in California whose Local Rules mandate its use. See Local Rule 9014-1, subd. (c).
The Docket Control Number tells the Court, at a glance, which party has submitted a motion or related paper, and how many previous motions that party has submitted. It must be placed on the caption page of every motion and motion-related filing.
The DCN consists of three letters, which should be the attorney’s first, middle, and last initial or first three initials of the law firm’s name. The three initials are followed by a dash and the and the number that is one number higher than the number of motions previously filed by that attorney or law firm in a specific bankruptcy case or adversary action.
In practice, attorney Melody A. Duck’s first motion in the bankruptcy petition case would be: MAD-1. If Melody also represents a party in an adversary action, her first motion in the adversary action would also have a DCN of MAD-1. Her reply papers related to that first motion would still have a DCN of MAD-1. But her second motion would be designated with a DCN of MAD-2.
Both a motion to augment and request for judicial notice allow parties to add matter to the record on appeal. However, which one to use depends primarily on what matter you seek to add and whether it was presented to the superior court.
The most important distinction is that a request for judicial notice can be used to add material to the record on appeal that was never before the trial court, or of which the trial court refused to take judicial notice. (See, e.g., Haworth v. Superior Court (Ossakow) (2010) 50 Cal.4th 372, 379.) In practice, however, Courts of Appeal will generally not take judicial notice of matter that was not before the superior court absent “exceptional circumstances.” Nor will a Court of Appeal take judicial notice of a matter that is not relevant to a dispositive issue on appeal.
In contrast, a motion to augment can only be used to add material to the record on appeal that was previously presented to the superior court, such as exhibits admitted into evidence at trial or documents lodged with the court.
The following are examples of the types of matter that can be added to the record on appeal through judicial notice:
- California decisional, constitutional and statutory law;
- Regulations or legislative enactments issued by or under the authority of the United States or any public entity in the United States;
- Official acts of federal and state legislative, executive and judicial departments;
- Sister state decisional, constitutional and statutory law;
- The superior court judgment;
- A foreign country judgment;
- Legislative materials;
- Newspaper articles;
- the existence of a factual finding in another proceeding but not of the truth of that finding.
Basically, a Court of Appeal can judicially notice any matter that the superior court could have. A request for judicial notice must be made by formal, noticed motion in the Court of Appeal and filed separately from briefs. It must also be accompanied by a proposed order (CRC 8.252(a)(1)) and a copy of the matter to be judicially noticed. (CRC 8.252(a)(2).)
What to do when documents you designated for your record on appeal are accidentally omitted by the Superior Court clerk
If you designated material for your Record on Appeal, but find that it was accidentally omitted by the Superior Court clerk, you need to file a Notice in the Superior Court requesting inclusion of the material.
Rule 8.155(b) of the California Rules of Court provides:
(1) If a clerk or reporter omits a required or designated portion of the record, a party may serve and file a notice in superior court specifying the omitted portion and requesting that it be prepared, certified, and sent to the reviewing court. The party must serve a copy of the notice on the reviewing court.
(2) The clerk or reporter must comply with a notice under (1) within 10 days after it is filed. If the clerk or reporter fails to comply, the party may serve and file a motion to augment under (a), attaching a copy of the notice.
The “notice” must be served on all parties and the appellate court, and must specify the omitted portions and request that they be prepared, certified and sent to the appellate court. If you want material added to the Record on Appeal that you did not include in your Designation of Record on Appeal, then you cannot use this method.
However, if the clerk fails to comply with the notice, you may then file a motion in the appellate court to augment the record under CRC 8.155(a). A copy of the notice that was filed in the superior court must be attached to the motion to augment.
Differences Between Discovery in California State Court and Federal Court: Hold on Discovery in Federal Court Until Parties Confer
The California Discovery Act allows a Plaintiff to serve written discovery on the defendant as soon as ten days after service of the summons and complaint. (See, e.g., Code of Civil Procedure § 2030.020 [interrogatories].) But if you find yourself in federal court, not so fast.
Absent leave from the District Court, you cannot propound written discovery or take any depositions until after the parties and court have participated in the mandatory FRCP 26(f) conference among counsel. FRCP 26(f) requires parties to confer “as soon as practicable”—and no later than 21 days before the first scheduling conference, which is normally 90 days after defendant’s appearance or 120 days after service. The parties must discuss their claims and defenses, possible settlement, a discovery plan, and required initial disclosures. Only after meeting and conferring can the parties begin taking discovery in the form of depositions, interrogatories, etc. Additionally, each party’s initial disclosures are due within 14 days after the Rule 26(f) early conference. (FRCP 26(a)(1)(C).)
In federal court, a party can obtain discovery before the FRCP 26(f) conference only by court order and for good cause. Expedited discovery may be appropriate, for example, where a party seeks injunctive relief or where physical evidence may be consumed or destroyed.