(a) Calendaring and sessions
(1) Unless otherwise ordered, and except as provided in (2), all appeals in which the last reply brief was filed or the time for filing this brief expired 45 or more days before the date of a regular appellate division session must be placed on the calendar for that session by the appellate division clerk. By order of the presiding judge or the division, any appeal may be placed on the calendar for oral argument at any session.
(2) Oral argument will not be set in appeals under People v. Wende (1979) 25 Cal.3d 436 where no arguable issue is raised.
(Subd (a) amended effective January 1. 2020.)
(b) Oral argument by videoconference
(1) Oral argument may be conducted by videoconference if:
(A) It is ordered by the presiding judge of the appellate division or the presiding judge's designee on application of any party or on the court's own motion. An application from a party requesting that oral argument be conducted by videoconference must be filed within 10 days after the court sends notice of oral argument under (c)(1); or
(B) A local rule authorizes oral argument to be conducted by videoconference consistent with these rules.
(2) If oral argument is conducted by videoconference:
(A) Each judge of the appellate division panel assigned to the case must participate in the entire oral argument either in person at the superior court that issued the judgment or order that is being appealed or by videoconference from another court.
(B) Unless otherwise allowed by local rule or ordered by the presiding judge of the appellate division or the presiding judge's designee, all the parties must appear at oral argument in person at the superior court that issued the judgment or order that is being appealed.
(C) The oral argument must be open to the public at the superior court that issued the judgment or order that is being appealed. If provided by local rule or ordered by the presiding judge of the appellate division or the presiding judge's designee, oral argument may also be open to the public at any of the locations from which a judge of the appellate division is participating in oral argument.
(D) The appellate division must ensure that:
(i) During oral argument, the participants in oral argument are visible and their statements are audible to all other participants, court staff, and any members of the public attending the oral argument;
(ii) Participants are identified when they speak; and
(iii) Only persons who are authorized to participate in the proceedings speak.
(E) A party must not be charged any fee to participate in oral argument by videoconference if the party participates from the superior court that issued the judgment or order that is being appealed or from a location from which a judge of the appellate division panel is participating in oral argument.
(Subd (b) adopted effective January 1, 2010.)
(c) Notice of argument
(1) Except for appeals covered by (a)(2), as soon as all parties' briefs are filed or the time for filing these briefs has expired, the appellate division clerk must send a notice of the time and place of oral argument to all parties. The notice must be sent at least 20 days before the date for oral argument. The presiding judge may shorten the notice period for good cause; in that event, the clerk must immediately notify the parties by telephone or other expeditious method.
(2) If oral argument will be conducted by videoconference under (b), the clerk must specify, either in the notice required under (1) or in a supplemental notice sent to all parties at least 5 days before the date for oral argument, the location from which each judge of the appellate division panel assigned to the case will participate in oral argument.
(Subd (c) amended effective January 1, 2020; adopted as subd (b); previously amended and relettered effective January 1, 2010.)
(d) Waiver of argument
(1) Parties may waive oral argument in advance by filing a notice of waiver of oral argument within 7 days after the notice of oral argument is sent.
(2) The court may vacate oral argument if all parties waive oral argument.
(3) If the court vacates oral argument, the court must notify the parties that no oral argument will be held.
(4) If all parties do not waive oral argument, or if the court rejects a waiver request, the matter will remain on the oral argument calendar. Any party who previously filed a notice of waiver may participate in the oral argument.
(Subd (d) amended effective January 1, 2020; adopted as subd (c); previously relettered effective January 1, 2010.)
(e) Conduct of argument
Unless the court provides otherwise:
(1) The appellant, petitioner, or moving party has the right to open and close. If there are two or more such parties, the court must set the sequence of argument.
(2) Each side is allowed 10 minutes for argument. The appellant may reserve part of this time for reply argument. If multiple parties are represented by separate counsel, or if an amicus curiae-on written request-is granted permission to argue, the court may apportion or expand the time.
(3) Only one counsel may argue for each separately represented party.
(Subd (e) amended and relettered effective January 1, 2010; adopted as subd (d).)
Rule 8.885 amended effective January 1, 2020; adopted effective January 1, 2009; previously amended effective January 1, 2010.
Advisory Committee Comment
Subdivision (a). Under rule 10.1108, the appellate division must hold a session at least once each quarter, unless no matters are set for oral argument that quarter, but may choose to hold sessions more frequently.