An appeal is not a second trial. A California Court of Appeal does not rehear the case or examine witnesses. It also does not consider facts outside the existing record. Instead, it reviews the record to determine whether legal error occurred.
The record controls the arguments an appellant can raise. It also determines which evidence the court can examine and the scope of review. A gap in the record can doom an otherwise meritorious appeal. An incomplete transcript can prevent the court from evaluating a claimed error.
For anyone involved in a California civil appeal, the appellate record matters as much as the legal arguments. Knowing what belongs in the record and how it reaches the reviewing court can shape the entire appeal.
What the Record on Appeal Is
The record on appeal is the collection of documents, transcripts, and other materials transmitted to the reviewing court for use in deciding the appeal. It is not the same as the trial court file. It is not the same as the appellate briefs.
The trial court file contains everything filed in the trial court over the course of the litigation. The appellate record contains only those materials designated for inclusion. Some documents in the trial court file may never become part of the appellate record.
Appellate briefs are the written arguments submitted by the parties after the record is transmitted. The record and the briefs are related but distinct. The briefs interpret and argue from the record. They do not add to it.
The California Rules of Court govern how the appellate record is assembled and transmitted. Rule 8.120 of the California Rules of Court describes what normally constitutes the record on appeal in a civil unlimited case.
The Three Components of the Appellate Record
California civil appeals generally involve three components of the appellate record. Each serves a different function, and each is governed by its own rules.
The Clerk’s Transcript
The clerk’s transcript is a reproduction of documents from the trial court’s file. California Rules of Court, rule 8.122 specifies what the clerk’s transcript must include by default and what additional documents may be added.
By default, the clerk’s transcript includes the judgment or order being appealed and the notice of appeal. It also includes any notice of cross-appeal and the register of actions, if one exists.
The parties may also designate additional documents for inclusion. A document in the trial court file does not automatically appear in the clerk’s transcript. The designating party must specifically identify it.
Documents that were filed in the trial court but not designated for the record do not appear in the clerk’s transcript. This is why designation decisions matter. A motion, declaration, or exhibit that was before the trial court may not reach the Court of Appeal unless a party asks for it.
The Reporter’s Transcript
The reporter’s transcript is a verbatim written record of oral proceedings in the trial court. California Rules of Court, rule 8.130 governs the procedures for obtaining and designating a reporter’s transcript in a civil appeal.
Oral proceedings that may be transcribed include trials, motions heard on the record, and hearings on demurrers. Summary judgment arguments, bench trials, and any other reported proceeding may also be designated.
Not all trial court proceedings are reported. A proceeding held in chambers without a reporter, or a telephonic conference not on the record, may have no transcript to include.
A party seeking to include a reporter’s transcript must designate the specific proceedings for which transcription is requested. Designating every hearing in the case is rarely necessary. The designation should cover the proceedings actually relevant to the issues raised on appeal.
Where a reporter’s transcript is unavailable, California Rules of Court rule 8.134 and rule 8.137 provide alternatives. A settled statement may substitute for a transcript when the parties agree on what occurred. An agreed statement may substitute when all parties agree on the material facts.
Exhibits
Trial exhibits are physical or documentary items admitted into evidence during trial. Under California Rules of Court, rule 8.224, exhibits admitted at trial are not automatically sent to the Court of Appeal. A party must request transmission of specific exhibits.
The requesting party must identify the exhibits and ask the trial court to transmit them. They must also confirm inclusion before the record is certified.
Exhibits that were excluded from evidence at trial do not become part of the appellate record simply by being lodged. They were not admitted, so they carry no evidentiary status in the appeal.
The Appendix: An Alternative to the Clerk’s Transcript
California Rules of Court, rule 8.124, allows parties to use appendices instead of a clerk’s transcript in some civil appeals. An appendix is a collection of documents reproduced by the parties rather than by the trial court clerk.
Appendices can be more efficient when the parties know which documents matter. Rather than directing the clerk to reproduce a large portion of the trial court file, the parties reproduce only the relevant materials.
The joint appendix format allows both parties to include documents in a single set of volumes. Each party may also file a separate appendix. The Court of Appeal may require an appendix or may permit or require the clerk’s transcript format depending on the circumstances.
Documents in an appendix must have been filed in or lodged with the trial court, or admitted in evidence. New material is not permitted.
What Cannot Be Part of the Appellate Record
The appellate record includes only materials that were before the trial court. This limitation follows from the nature of appellate review. A Court of Appeal does not consider new evidence. A party cannot add a declaration that it never filed in the trial court. Documents created after the trial court entered judgment generally cannot become part of the appellate record. Expert opinions not offered at trial also cannot enter the record on appeal.
The court reviews the materials that the trial court had before it. If a party failed to introduce evidence at trial, it cannot add that evidence on appeal. The appellate record shows what happened below, not what a party wishes had happened.
This rule has real consequences. An appellant who discovers favorable evidence after judgment generally cannot rely on it during the appeal. New evidence may support a motion for a new trial in the trial court. It does not become part of the appellate record for a pending appeal.
Courts may, however, take judicial notice of certain matters under Evidence Code section 452. These matters can include records from other courts, even without formal designation in the appellate record.
How the Appellate Record Is Prepared
Designation and Election
After a notice of appeal is filed, the appellant must elect the form of the record. The election typically involves choosing between the clerk’s transcript and appendix formats. The appellant also designates which documents to include and which oral proceedings to have transcribed. California Rules of Court, rule 8.121 sets out the election and designation procedures.
The respondent may serve a counter-designation. A counter-designation adds documents the respondent believes are necessary for a fair appellate record.
Both parties have a role in shaping the record. An appellant who omits an important document may find that the Court of Appeal is unable to evaluate a key argument. A respondent who adds documents ensures that context favorable to the judgment is before the court.
Clerk’s Responsibilities
After the parties file their designations, the trial court clerk assembles the designated materials and certifies the clerk’s transcript. The clerk does not decide which documents matter to the appeal. Instead, the transcript includes the designated materials and documents that the rules require by default.
Once certified, the record goes to the Court of Appeal. Its transmission timing connects to the briefing schedule. Opening briefs typically cannot be filed until the Court of Appeal receives the record.
Court Reporter’s Responsibilities
When a reporter’s transcript is requested, the court reporter prepares the transcript of designated proceedings and certifies it. Under California Rules of Court, rule 8.130(b), the reporter has specific deadlines for completing the transcript after receiving a designation. Failure to obtain the transcript within applicable deadlines can delay transmission of the record and, in turn, delay briefing.
Costs
Preparing the appellate record involves costs. The clerk charges fees for preparing and certifying the clerk’s transcript. Court reporters charge fees for transcribing proceedings. These costs fall on the designating party.
California law provides procedures for indigent parties and those with court-appointed counsel. They may obtain the record without prepaying fees.
Augmenting the Record After It Is Transmitted
Once the record is transmitted to the Court of Appeal, the parties are not necessarily locked into it forever. California Rules of Court, rule 8.155 provides a mechanism for augmenting the record after transmission. A motion to augment asks the reviewing court to add materials that were before the trial court. Those materials were not included when the record was transmitted.
Augmentation is not unlimited. The Court of Appeal may grant or deny a motion to augment. The materials sought must have been part of the proceedings below. They must be materials a party could have designated originally.
A party cannot use a motion to augment to introduce evidence that was not before the trial court. The augmentation process corrects omissions from the record. It does not expand the scope of what the court can consider.
When augmentation is denied or unavailable, the consequence is that the reviewing court decides the appeal on the record as it stands. Arguments that depend on materials not in the record may be forfeited.
The Presumption Favoring the Judgment
California courts apply a presumption in favor of the trial court’s judgment. Under California Rules of Court, rule 8.163, the Court of Appeal presumes that the judgment appealed from is correct. When the record appears incomplete, the court further presumes that the missing material supports the judgment below.
This presumption is significant for appellants. If an appellant fails to include a transcript of a relevant hearing, the court may presume that the hearing supported the trial court’s ruling. If a motion or declaration is missing from the record, the court may presume it was unfavorable to the appellant.
The presumption does not mean the appellant loses automatically on a gap in the record. But it shifts the burden. An incomplete record is a problem for the party asserting error.
Respondents benefit from this presumption. A respondent who is satisfied with the trial court’s judgment may find that gaps in the appellant’s designated record actually help the appeal rather than hurt it.
The Relationship Between the Record and Appellate Arguments
An appellate court generally limits review to the arguments raised and the record provided. This rule is more than a formality. A court cannot evaluate an argument that depends on facts outside the record. A court also cannot review an alleged error without the relevant hearing transcript.
Likewise, a challenge to evidentiary sufficiency requires the relevant evidence in the appellate record. The record also establishes which arguments the parties preserved. Parties generally cannot raise issues for the first time on appeal.
The record must show that the party raised the argument in the trial court. This principle directly affects how appellants and respondents approach the record. The appellant must build a record that supports reversal. The respondent seeks to show that the record supports affirmance.
A party who raises an argument for the first time on appeal may face forfeiture. California appellate courts regularly decline to consider arguments that parties failed to preserve below. The record shows which arguments the parties raised and which they did not.
Electronic Records in California Appeals
California courts increasingly use electronic filing and record transmission. Electronic filing systems and digital records have changed how many courts assemble and transmit appellate records. The California Courts’ website provides current electronic filing requirements for each appellate district.
Electronic appendices have also become common. Parties can submit documents as PDFs instead of paper copies. The substantive rules still govern which documents parties can include.
Electronic records do not change the fundamental limits on appellate records. A party cannot include a document electronically if the trial court never received it.
Record Differences in Particular Appeal Types
Expedited and Limited Appeals
Not all California civil appeals follow the standard record process. Limited civil cases have their own record requirements under California Rules of Court, rule 8.832. Small claims appeals follow a separate framework under rules 8.950 et seq. California Rules of Court, rule 8.832 and related rules govern records in limited civil appeals. Appeals that challenge a ruling before final judgment have their own record requirements. The applicable rules depend on the basis for the interlocutory appeal.
Writ Proceedings
Writ proceedings are distinct from ordinary appeals. In a writ proceeding, the petitioner submits a petition supported by a supporting memorandum and an appendix of relevant documents. The process differs from the clerk’s transcript and reporter’s transcript model used in most civil appeals. An overview of the distinction between writs and ordinary appeals is discussed in the context of writ versus appeal in California.
Appeals from Summary Judgment
An appeal from a summary judgment presents particular record considerations. The appellant typically includes the motion papers, the opposition, the reply, the evidence submitted by each side, and the trial court’s ruling. Exhibits submitted in support of and in opposition to the motion are the core evidence before the court.
The Court of Appeal reviews the same papers the trial court had. Any exhibit not included in those papers was not before the trial court and cannot support the appeal. Appeals from a sustained demurrer or judgment on the pleadings present a narrower record. The pleadings themselves and any judicially noticed material are typically the core documents.
Practical Implications for Parties Preparing an Appeal
Record preparation begins before the party files the notice of appeal. During trial court proceedings, careful attention to filings, reported proceedings, and admitted evidence can help on appeal.
Parties should report any proceeding that may matter on appeal. Oral rulings, statements of reasons, and hearings on dispositive motions may become important later. Without a court reporter, the parties cannot obtain a transcript of the proceeding.
The trial court preserves filed documents, but only designated documents appear in the appellate record. Filing a document alone does not place it before the Court of Appeal. The party must designate it for inclusion in the record.
After a party files an appeal, the designation process becomes time-sensitive. The rules governing designation deadlines form part of the broader procedural framework for filing and pursuing appeals in California courts.
Respondents should review the appellant’s designations carefully. An appellant may omit documents that support the trial court’s judgment. Counter-designations allow respondents to address those omissions.
The Record and the Result
The appellate record is the foundation of the appeal. Every argument the Court of Appeal evaluates rests on the record. Every claim of error requires support in the record. Each factual assertion by either party traces back to something in the record.
An appeal built on a well-prepared record gives the reviewing court what it needs to evaluate error. An appeal with gaps, missing transcripts, or undesignated documents asks the court to presume what happened rather than see it.
Kassouni Law handles California civil appeals with particular attention to the evidentiary and record foundation underlying each claim of error. The firm represents private parties exclusively and has never represented a government agency. Managing attorney Timothy V. Kassouni has argued before the California Court of Appeal, the California Supreme Court, the Ninth Circuit Court of Appeals, and the United States Supreme Court. He has been named a Super Lawyer, an honor limited to the top 5% of California attorneys statewide, and has been admitted to the California State Bar since 1989.
Property owners and businesses facing adverse judgments may benefit from a record review before committing to an appeal. The firm’s appellate practice covers civil appeals, property rights matters, land use disputes, and constitutional issues. Call 877-770-7379 to arrange a personal evaluation of your appellate matter with Timothy Kassouni.
Frequently Asked Questions
1. What is the difference between the appellate record and the trial court file?
The trial court file contains all documents filed during the litigation. The appellate record is a subset: only materials specifically designated by the parties, plus certain required items, become part of the record on appeal. Documents in the trial court file that are not designated do not reach the Court of Appeal. The record also includes transcripts of oral proceedings, which are not part of the trial court file in the usual sense.
2. Can new evidence be submitted as part of the California appellate record?
Generally, no. The appellate record includes only materials that the trial court considered. Parties cannot add evidence that they never introduced in the trial court. If new evidence could significantly affect the case, the party should typically seek a new trial in the trial court rather than submit it to the appellate court.
3. What happens if the appellate record is missing a document or transcript?
A party may file a motion to augment the record under California Rules of Court, rule 8.155. The court has discretion to grant augmentation when the missing material was before the trial court and is relevant to the issues on appeal. If augmentation is denied, the court applies a presumption that the missing material supported the trial court’s judgment. An appellant relying on an argument that requires a missing document is at risk of losing that argument.
4. What is the difference between a clerk’s transcript and a reporter’s transcript?
A clerk’s transcript reproduces documents from the trial court’s file, including pleadings, motions, orders, and the judgment. A court reporter prepares a reporter’s transcript as a verbatim record of oral proceedings, including trials, hearings, and arguments made on the record. The California Rules of Court govern both transcripts. Rule 8.122 addresses clerk’s transcripts, while rule 8.130 covers reporter’s transcripts. Many appeals require both.
5. What is an appendix and when is it used instead of a clerk’s transcript?
An appendix contains documents that the parties reproduce instead of the trial court clerk. Under California Rules of Court, rule 8.124, parties in civil appeals may use an appendix instead of a clerk’s transcript. An appendix can save time when the relevant documents are well-defined because the parties choose which materials to include. The appendix must contain only documents filed with or lodged in the trial court, or documents admitted into evidence.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. California appellate record requirements are governed by the California Rules of Court and are subject to change. Please contact Kassouni Law for an evaluation of your specific appellate matter.
