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Experience:  Civil litigation attorney for individuals and businesses.
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Hello, This question is in regards XXXXX XXXXX civil appeal in

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This question is in regards XXXXX XXXXX civil appeal in the state of California, 4th district, division 3. I am a pro per plaintiff and appellant appealing from a judgment sustaining a demurrer without leave to amend.

Here is a link to the appellate docket:

I had filed the notice of appeal on 9/12/13 and have been having difficulty figuring out what I am supposed to file and where. I received a default notice in the mail, generated 9/16/13, from the superior court clerk indicating that I had not filed the designation of record on appeal and that I did not deposit money with the trial court clerk for preparing the transcripts. I believed this was related to the designation of record on appeal and fee waiver not being filed until 9/17/13 & 9/20/13, respectively, and that since those were filed shortly after the notice was generated, the default had been cured. Apparently, the default had not been cured by those filings.

I was supposed to file a proof of service with the designation of record. I had been serving all my filings on opposing counsel using the electronic service option that OneLegal lets you use when you file things electronically with the superior court clerk. The electronic service provider sends opposing counsel an email when you file things. I was operating under the mistaken belief that when you use their eService option, the fact that opposing counsel had been served electronically would be communicated to the superior court and that this was acceptable proof that opposing counsel had been served. Additionally, I discovered that while the trial court had waived the fees for the clerk's transcript on appeal, apparently the court does not waive the fees for the reporter's transcript.

So, I had the opposing counsel served again by a party other than OneLegal and filed the proof of service with the trial court. I contacted the court reporter and I have mailed her money ($79.59) to prepare the transcripts and she said she would give me a waiver that I can file with the clerk when she gets the money. I am currently waiting for her to get the money and send me the waiver so that I can file it with the superior court clerk.

On 10/22/13, the superior court notified the appellate court that I failed to cure the default and the appellate court has dismissed my case per rule 8.140(b) (Failure to procure the record).

I want to reinstate the case, and I am unsure of how best to go about doing this. I see a variety of options. For example, under Code of Civil Proceudre § 473(b) I can file a motion to set aside the dismissal, but I am concerned about using moving pursuant to this section because it requires that "[a]pplication for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted." I worry that this would mean that I would have to include a copy of my opening brief.

I also see that under rule 8.812 I may apply for relief from default, but I do not know if this is the right rule to cite because I do not know if "default" is what I need relief from.

I see that under rule 8.268 I may petition for a rehearing, but there has been no hearing so I don't see how there could be a rehearing.

I see that under rule 8.264(c) the court may modify the decision.

I also suspect that there are things that I am not aware of.

What should I do?

William B. Esq. :

Dear Customer, thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

In the 4th District, the Court will allow a motion to reinstate the appeal.

If the matter is dismissed, the court may, upon a motion, reinstate the appeal if there is a good reason why the payment is late. (CRC rule 8.100(c).) If the court grants the motion to reinstate the appeal, it gives a specific time for payment(s) to be made.

William B. Esq. :

As you are going to be working with the 4th District throughout your matter, I would strongly advise that you review this Court's webpage specific to their self-help booklet as it has tips and legal resources to assist you - all specific to that district:

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.

Thank you for using our service, please do not forget to rate my answer when you are satisfied.

William B. Esq. :

I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response (some customers have browser interface issues and I want to avoid any delay) and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

Customer: replied 3 years ago.

Hello Mr. B,


The superior court wanted for two fees and the appellate court wanted money for one fee. The superior court wanted money to prepare the clerk's transcript and the reporter's transcript. The appellate court wanted money for the $775 filing fee. The fees for preparing the clerk's transcript and the $775 filing fee were waived by both the superior and appellate courts. The fee that was not waived was the reporter's transcript. I believe that the rule 8.100(c) refers to the $775 filing fee due to the appellate court, which has been waived.

Dear Customer,

I reviewed your Court Docket - we do not normally perform this as it is outside the normal scope of the forum, but I believe it is the best way to quickly address the ruling at issue in your case.

The Court's ruling was based on a discretionary authority of the Court to dismiss your case in Cal. Rule of Court 8.140(b)(1). What this means is that the Court also has the right to vacate that order. You can file a motion to vacate the order as soon as you have cured any defects (the failure to properly prepare and serve the record on appeal).

The second part of the ruling is a 30 day deadline. Rule 8.264(b)(1) provides that unless the Appellate Court vacates or modifies its ruling within 30 days, it will become the final ruling of the Court.

You will want to ensure that the Superior Court's confirmation regarding your waiver and preparation of the reporter's transcript, and service of your notice of designation of the record on the opposing side (also filed with the Court) are done as quickly as possible. As soon as all of these things are in place (or more quickly if it appears that it is taking too long to get your motion filed before the 30 days), you will need to file your motion to vacate the Court's dismissal in the Appellate Court.
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