Anaheim, CA asked in Appeals / Appellate Law and Civil Litigation for California

Q: In unlimited civil appeals, if proof of service doesnt exist for the settled statement, is it proper to move to strike?

As an indigent appellant of an underlying family law case, I elected to proceed with the clerk's transcript and settled statement in lieu of reporter's transcripts (CRC 8.137). The trial court modified my proposed settled statement and certified the modified statement as an accurate summary if the oral proceedings. However, I was never served with the court's modified statement; seeing it first in the certified record. After an unsuccessful motion to the appellate court seeking an order directing the trial court to properly settle the statement, and a subsequent denial of reconsideration, I filed my opening brief. The respondent's brief relies solely on this incorrect record and it has come to my attention that no proof of service exists to show that the court's modified statement was ever served on the parties, nor was it even imaged into the register of actions. Do I move to strike the settled statement and respondent's brief?

1 Lawyer Answer
Charles William Michaels
PREMIUM
Charles William Michaels
Answered
  • Appeals & Appellate Lawyer
  • Columbia, MD

A: First, I am not a California lawyer. But I would file that motion, or a similar motion, in the appellate court, which would call attention to your problem. And if you plan on filing a reply brief, then attach the trial court's modified statement in that brief, and in the reply brief concentrate on the respondent's reliance on the incorrect record.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.