Evidence on Appeal: Just Because It Is in the Appellate Record Does Not Mean It Is in the Evidentiary Record

Timothy Kowal, Esq.
May 17, 2021

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

On appeal, the plaintiff argued his evidence clearly met the "minimal merit" threshold for the second prong of the anti-SLAPP analysis. (The first prong was met easily because the plaintiff's complaint alleged the defendants had engaged in fraud two years prior by obtaining a judgment for quiet title to a parcel of property in Oakland.)

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed. (See Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief issue on appeal waives it].)"

At oral argument, counsel urged that the court ought to consider the evidence in light of its de novo review of anti-SLAPP rulings. The court rejected this argument. Raising the issue at oral argument is too late. If not raised in the briefing, the argument is forfeited.

(The court does not say so, but the plaintiff's argument was also incorrect on the law. Evidentiary rulings on anti-SLAPP motions are reviewed for abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1061.))

The court also rejected the plaintiff's other arguments (without describing them) for failing to raise them in the trial court, citing In re S.B. (2004) 32 Cal.4th 1287, 1293 [parties forfeit arguments not raised in the trial court]; Hansen v. Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1547 [plaintiff cannot defeat an anti-SLAPP motion by raising new allegations and claims].)

"It has long been deemed improper to raise new points at oral argument, and such questions will ordinarily not be considered. [Citations.]" (People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 68.)

The Upshot: Do not overlook your evidence on appeal. Just because it is in the appellate record does not meant it is in the evidentiary record.

Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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