Generally a record of oral argument is not necessary on an appeal. It is necessary only if one party made a concession or in the rare circumstances in which the judge's comments are somehow relevant. The latter circumstance is very rare.
The Rules of Court provide for an agreed statement or settled statement on appeal instead of a transcript. In other words, one party submits the facts that are supposed to be relevant, and either the other party agrees to those facts or the court determines the true facts. I have never heard them used on a motion hearing, and I doubt a court would remember the argument before it well enough to settle a statement.
No, you cannot do a declaration. As the other attorney indicated, you must proceed by settled or agreed statement, the procedure for which is in the rules of court.
But if you are appealing something that arose out of law and motion (judgment after demurrer or summary judgment) it is unlikely the motion hearing has any bearing on the appeal.
If you think what happened at hearing is important, then you need to work with the other side to obtain an agreed or settled statement.
I am licensed only in California and this response is provided as general information only. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice. My answer to your question on AVVO does not create an attorney-client relationship.
I would qualify Mr. Eschen's response to say that a reporter's transcript is not necessary when your are appealing an order, as long as the moving papers and opposition, etc., fully set out the law, facts and arguments for both side. If you are appealing from a trial, the reporter's transcript (or a settled statement or statement on appeal) is an imperative.
Further, although you did not ask, your question raises a yellow flag for any appellate attorney. What kind of a motion are you appealing from? Is the order arising from that motion an appealable order? Or are you appealing from a judgment and one or more issues arose by way of a motion? I ask because many, if not most, orders arising from a law and motion hearing are not ripe for appeal.
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