4th District Division two tentative notice violates due process concerns, prohibits supplemental briefing


The 4th District division two appeals court has a habit of uniformly inventing creative policies that violate an appellant’s right to procedural and substantive due process.  The court has a policy of releasing tentative decisions before oral argument. Now normally most people can agree that knowing the direction of the opinion is a good idea as a litigant can prepare their oral argument more effectively.  However, the court of appeal has adopted an informal policy of not changing their tentatives, which severely prejudices an appellant’s standing if the mistakes in the tentative opinion reflect an egregious holding that is not supported by the record on appeal.

The fourth district goes one step further in curtailing the ability of a litigant to brief the court. They specifically prohibit that an appellant is allowed to present supplemental briefing. However, supplemental briefing is a method allowed by title eight rules of court specifically Rule 8.254,  New Authorities which states:

(a) Letter to court

If a party learns of significant new authority, including new legislation, that was not available in time to be included in the last brief that the party filed or could have filed, the party may inform the Court of Appeal of this authority by letter.

(b) Form and content

The letter may provide only a citation to the new authority and identify, by citation to a page or pages in a brief on file, the issue on appeal to which the new authority is relevant. No argument or other discussion of the authority is permitted in the letter.

(c) Service and filing

The letter must be served and filed before the court files its opinion and as soon as possible after the party learns of the new authority. If the letter is served and filed after oral argument is heard, it may address only new authority that was not available in time to be addressed at oral argument.

Once again the tentative opinion notice requirements violate the procedural and substantive due process standards pursuant to Rule 8.20  which states that California rules of court prevail and a court of appeal MUST accept for filing a record, brief or other document that complies with the California rules of court which INCLUDES supplemental briefing. Unilaterally imposed creative local rules of court have no relevance.


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