CA Supreme Court CJEO defines record on appeal in a published opinion.

Many litigants have to deal with a situation where a trial court does not make a court reporter available, either deliberately or as part of budget cuts. Appeal Courts in this State routinely dismiss civil appeals citing that there is no adequate record on appeal if a court reporter transcript is not provided. The CA Supreme Court Committee on  Judicial Ethics Opinions has defined what exactly is considered to be a record on appeal in those situations. Although the opinion references disqualification disclosures, the definition of a record on appeal is relevant to every appeal case.

“Record of Written Documents

While there is no definition of a record for purposes of judicial disqualification, appellate rules identify what documents are recognized as the record of proceedings for purposes of review. On appeal, the record of written documents is set forth in the clerk‟s transcript, which generally includes notices, judgments, orders, minute orders, court minutes, the register of actions, and other documents filed or lodged in the case (Cal. Rules of Court, rules 8.120(a)(A), 8.122(b), 8.320(b), 8.336(c), 8.388(b), 8.407(a), 8.480(b), 8.610(a)(1), 8.832(a), 8.860(a)(1)(A), 8.910(a)(1)(A), 8.920(1)). In some appellate matters, however, the record of written documents may alternatively consist of the court‟s file, where allowed by local rule (Cal. Rules of Court, rules 8.120(a)(C), 8.128(a), 8.860(a)(1)(B), 8.863, 8.910(a)(1)(B), 8.914, 8.920(1)). In small claims appeals, the record on appeal will always consist of the court file and all related papers (rule 8.957).
For purposes other than judicial disqualification, several courts have evaluated specific court documents and found that minute orders and the court‟s official minutes suffice as “a record” when entered in the case file (People v. Dubon (2001) 90 Cal.App.4th 944, 954 [a minute order qualified as „a record‟]; Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113 [official court minutes accurately and officially reflect the work of the court]; Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 932 [a court order is a document that is either entered in the court’s permanent minutes or signed by the judge and stamped „filed‟]).
From these cases and the rules of court, we conclude that all documents filed, entered, or lodged in the case file constitute a trial court‟s written record of proceedings. Such documents include minute orders, the official clerk‟s minutes, and formal orders entered in the case file. Thus, when there is no court reporter or electronic recording, and therefore no record of oral proceedings, disclosures must be made part of the written record of proceedings in order to be “on the record” pursuant to canon 3E(2)(a).”



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