Appellate Briefing Fail: Large Sections Disregarded, and Entire Reply Brief Forfeited, for Failure to Provide Citations and Headings

Timothy Kowal, Esq.
August 19, 2021

They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support each point by argument and, if possible, by citation of authority."

Sure, it is poor form not to include all that. But really, what's the worst that can happen if you slip up a bit on these particulars?

You will find out in The Villas v. Westpark Corte Bella Comm. Assoc. (D4d3 Aug. 12, 2021) no. G059577 (nonpub. opn.).

There, the opening brief failed to comply with rule 8.204(a)(1)(C) because "while the brief has some record references, large parts of the brief, including half of the statement of facts, have none." The Court of Appeal has the discretion to disregard passages of a brief that do not comply with rule 8.204(a)(1)(C). (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 195; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990.)

The opening brief also failed to comply with rule 8.204(a) because it did not explain why the order on appeal was an appealable order (even though it was an appealable order).

The opening brief also failed rule 8.204(a)(1)(B) because it did not “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” One of the poorly-headed sections also contained few legal citations as well, so the court had discretion not to consider that entire section of the brief. (See Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 248, fn. 6; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114.)

The opening brief also failed to discuss the appellate standard of review. "Although a statement of the standard of review is not a technical requirement of an appellate brief, “[f]ailure to acknowledge the proper scope of review is a concession of a lack of merit.” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 (Sonic).) “ ‘Arguments should be tailored according to the applicable standard of appellate review.’ ” (Ibid.) By failing to acknowledge the standard of review, tailor its arguments to that standard, and properly cite to the record, the Villas has failed to make “coherent legal argument” sufficient to meet its burden of proving error. (Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 555.)"

As to the appellant's reply brief: "The entire appellant's reply brief is in violation of rule 8.204(a)(1)(B) and (C) because the brief has only a handful of record references and is completely lacking in citation to authority. The court had discretion not to consider the entire brief. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418-419; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Roe v. McDonald's Corp., supra, 129 Cal.App.4th at p. 1114.) "We shall not consider factual assertions made in the appellant's reply brief that are not supported by a citation to the record." (Ragland v. U.S. Bank National Assn., supra, 209 Cal.App.4th at p. 195.)

The reply also made new arguments that were not raised in the opening brief. Those arguments are forfeited. (Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106, fn. 6 [“we do not consider arguments raised for the first time in a reply brief”]; Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428 [arguments raised for the first time in the appellant's reply brief are forfeited].)

In sum, for failing to comply with Rules of Court rule 8.204(a) and other briefing defects:

  • The court disregarded the parts of the brief that lacked record citations in violation of rule 8.204(a)(1)(C).
  • The new arguments in the reply brief not raised in the opening brief were forfeited and not considered.
  • All the rest of the arguments made in the appellant's reply brief were forfeited, and not considered.

Magnanimously, the court did go on to evaluate the balance of the arguments on the merits. As you might expect:


Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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