Judge: Steven A. Ellis, Case: BC722586, Date: 2024-06-03 Tentative Ruling

Case Number: BC722586    Hearing Date: June 3, 2024    Dept: 29

Motion to Augment Record on Appeal and Extension in Time to File Appellants Opening Brief filed by Plaintiff Cherise Fox.

Tentative

The motion is denied

Background

On September 19, 2018, Cherise Fox (“Plaintiff”) filed her action against City of Beverly Hills (“Defendant”) and Does 1 through 100. Defendant filed an answer on November 5, 2018.

On June 9, 2022, the Court granted Defendant’s motion for summary judgment.

On August 8, 2022, Plaintiff filed an appeal to the granting of Defendant’s motion for summary judgment. On October 26, 2022, a notice of default of the appeal was filed, giving Plaintiff the deadline of November 11, 2022, to file the record on appeal.

On October 28, 2022, judgment was entered against Plaintiff in this matter.

On December 8, 2022, Plaintiff’s appeal was dismissed.  The remittitur issued on February 8, 2023.

On August 3, 2023, an extension to file was granted to Plaintiff, and her new deadline was September 30, 2023. A second extension was given to file to November 15, 2023. On February 8, 2024, a Notice of Non-Compliance of Default on Appeal was filed.

On March 6, 2024, Plaintiff’s appeal was dismissed again. The Court denied Plaintiff’s motion to vacate the dismissal on April 3, 2024.  The remittitur issued on May 9, 2024.

On May 7, 2024, Plaintiff filed a motion to augment record on appeal with the Superior Court. No opposition has been filed.

Legal Standard

“(1)  At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include:

(A)  Any document filed or lodged in the case in superior court; or

(B)  A certified transcript-or agreed or settled statement-of oral proceedings not designated under rule 8.130. Unless the court orders otherwise, the appellant is responsible for the cost of any additional transcript the court may order under this subdivision.

(2)  A party must attach to its motion a copy, if available, of any document or transcript that it wants added to the record. The pages of the attachments must be consecutively numbered, beginning with the number one. If the reviewing court grants the motion it may augment the record with the copy.

(3)  If the party cannot attach a copy of the matter to be added, the party must identify it as required under rules 8.122 and 8.130.”

(California Rules of Court, rule 8.155, under Article 2 for Civil Appeals.)

“[C]ourts of appeal have appellate jurisdiction when superior courts have original jurisdiction in causes of a type within the appellate jurisdiction of the courts of appeal on June 30, 1995, and in other causes prescribed by statute.” (Cal. Const., art. VI, § 11.)

“An appeal, other than in a limited civil case, is to the court of appeal... From a judgment. (Code Civ. Proc., § 904.1(a).)

Discussion

Plaintiff has filed a motion to augment the record. Under the Rules of the Court, the motion must be directed to the Court of Appeal, not the Superior Court.  The Superior Court does not have the power to grant the motion.

Accordingly, the motion is denied.  

Conclusion

The Court DENIES Plaintiff’s motion.

Moving party is ORDERED to give notice.