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?
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.
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