Cal. R. 8.963

As amended through September 20, 2024

Rule 8.963 - Abandonment, dismissal, and judgment for failure to bring to trial

(a) Before the record is filed

Before the record has been transmitted to the court assigned to hear the appeal, the appellant may file in the small claims court an abandonment of the appeal or a stipulation to abandon the appeal. Either filing operates to dismiss the appeal and return the case to the small claims court.

(Subd (a) amended effective January 1, 2007; previously amended effective July 1, 1972, January 1, 1977, and January 1, 2005.)

(b) After the record is filed

After the record has been transmitted to the court assigned to hear the appeal, the court may dismiss the appeal on the appellant's written request or the parties' stipulation filed in that court.

(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 2005.)

(c)Dismissal or judgment by the court

(1) The court must dismiss the appeal if the case is not brought to trial within one year after the date of filing the appeal. If a new trial is ordered, the court must dismiss the appeal if the case is not brought to trial within one year after the entry date of the new trial order.

(2) Notwithstanding (1), the court must not order dismissal or enter judgment if there was in effect a written stipulation extending the time for trial or on a showing that the appellant exercised reasonable diligence to bring the case to trial.

(3) Notwithstanding (1) and (2), the court must dismiss the appeal if the case is not brought to trial within three years after either the notice of appeal is filed or the most recent new trial order is entered in the court assigned to hear the appeal.

(Subd (c) amended effective January 1, 2007; previously amended effective January 1, 1977, July 1, 1991, and January 1, 2005.)

(d)Notification by clerk

If an appellant files an abandonment, the clerk of the court in which it is filed must immediately notify the adverse party of the filing. The clerk of the court assigned to hear the appeal must immediately notify the parties of any order of dismissal or any judgment for defendant made by the court under (c).

(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2005.)

(e)Return of papers

If an appeal is dismissed, the clerk of the court assigned to hear the appeal must promptly transmit to the small claims court a copy of the dismissal order and all original papers and exhibits sent to the court assigned to hear the appeal. The small claims court must then proceed with the case as if no appeal had been taken.

(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2005.)

(f)Approval of compromise

If a guardian or conservator seeks approval of a proposed compromise of a pending appeal in which a new trial has been ordered, the court assigned to hear the appeal may, before ruling on the compromise, hear and determine whether the proposed compromise is for the best interest of the ward or conservatee.

(Subd (f) amended effective January 1, 2007; previously amended effective January 1, 2005.)

Cal. R. Ct. 8.963

Rule 8.963 renumbered effective 1/1/2009; adopted as rule 157 effective 7/1/1964; amended and renumbered as rule 155 effective 7/1/1991; previously amended effective 1/1/1972,7/1/1972, and1/1/2005; previously amended and renumbered as rule 8.913 effective 1/1/2007.

Advisory Committee Comment

Subdivision (b). This provision addresses the finality of decisions in proceedings relating to writs of mandate, certiorari, and prohibition. See rule 8.888(a) for provisions addressing the finality of decisions in appeals.

Subdivision (b)(1). Examples of situations in which the appellate division may issue an order dismissing a writ petition include when the petitioner fails to comply with an order of the court, when the court recalls the alternative writ, order to show cause, or writ of review as improvidently granted, or when the petition becomes moot.

Subdivision (d). Under this rule, a remittitur serves as notice that the writ proceedings have concluded.