Failing to Exercise Discretion Is an Abuse of Discretion

Timothy Kowal, Esq.
November 13, 2020

Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. In my appellate practice, however, I have seen a number of discretionary orders -- a small number, but a significant number -- that may be challenged as the product of a failure to exercise discretion altogether, such as refusing to rule on a motion, or accepting counsel's representation sight unseen, or refusing to grant a new-trial motion out of sheer squeamishness.

The most often cited case for this point is Fletcher v. Super.Ct. (Oakland Police Dept.) (2002) 100 Cal.App.4th 386, 392, for its strong quote: “Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (Internal quotes and citations omitted.)

But here are some examples from civil cases.

Take Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, where a financial advisor, sued by investors, moved to compel the matter to arbitration. The investors vigorously opposed, arguing the arbitration agreement was the product of fraud, and requesting an evidentiary hearing on the issue. The trial court compelled arbitrate, finding no evidence of fraud.

Held: Reversed. Whether to hold an evidentiary hearing was discretionary, but there was nothing to suggest the trial court exercised any discretion at all.

Or in the family law context, take In re Marriage of Gray (2007) 155 Cal.App.4th 504, where husband's defined-benefit pension was reserved for allocation pursuant to "the Brown formula," which vexed the parties and consumed many pages of analysis in the opinion. The trial court decided the Brown formula required the court to employ the time rule, which is a mathematical formula (read: no judicial discretion involved), making the community share of the pension directly proportional to the time the community invested in the pension.

Held: Reversed. The Brown "formula" is not formulaic, it is discretionary. Trial court failed to exercise discretion. That was reversible error.

Similarly, when the trial court employs an erroneously narrow set of factors in exercising discretion, such as in the case of a civil harassment restraining order, that, too, is a failure to exercise discretion warranting reversal. Yost v. Forestiere, F078580, at *1 (Cal. Ct. App. June 29, 2020). (This case was covered in episode 4 of the California Appellate Law Podcast.)

But my favorite failure to exercise discretion is in the case of Gardner v. Superior Court (1968) 182 Cal.App.3d 335, where husband and wife borrowers on a small loan failed to show up to depositions, then failed to show up at a trial setting conference. Husband said he didn't want to travel from their Montana home to San Diego because he had had "bad luck" there. When borrowers failed to show at trial, default judgment was entered. Borrowers then moved to set aside the default, this time submitting affidavits complaining of respiratory infection, bronchitis, and severe weather. etc.

Having witnessed defendants' evasive conduct throughout the proceedings, the trial judge would have denied the motion to set aside the default judgment. But the judge didn't deny the motion. Why didn't the judge deny the motion, you ask? The judge, who clearly had been reversed in the past and had not gotten over it, tells us exactly why:

"I can just see these guys in the Fourth Appellate District. The crocodile tears would be falling all over the place." "I think it is a stall, too, in reality, but that is just not the way they come out when they come up to the 4th District. It comes out, 'Here's the poor citizen, denied their day in court.'"

Well, if the Fourth District had reluctantly reversed this judge before, it was going to relish it this time. In issuing a peremptory writ, the Court found the trial court's exercise of discretion "distressingly absent," and had several quotable things to say on the subject:

"To put the matter plainly, it is the trial judge's job to decide such cases. It is the judge's responsibility to consider and weigh all the evidence and argument and make a reasoned choice. Abdication to some imagined appellate compulsion is not the exercise of discretion." (Italics added.)


"If we are going to make the decisions [in the first instance], we might as well do away with the trial courts and try all cases as original proceedings."

And the capper:

"We encourage our colleague on the trial bench, regardless whether he thinks his views are currently out of fashion, to shoulder his responsibilities as a player on the field of the common law, and leave the determination of hits and errors to the official scorer. By issuing our writ of mandate here, we afford him a second chance to play ball."

Judges may make the wrong call. But don't let your judge get away with a ruling that makes no call at all.

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