Implied Findings Doctrine Only Applies When the Trial Court's Reasons Are Correct — Here, They Were Wrong

Timothy Kowal, Esq.
October 27, 2021

One of the many ways the deck is stacked against appellants on an appeal has to do with the implied findings doctrine. What is the implied findings doctrine? It says that even if the appellant is absolutely correct that the trial court did, in fact, fail to make the findings necessary to support the judgment against the appellant, the appellant still loses: the Court of Appeal will pretend the missing findings are there anyway.

So the respondents in Nielsen v. MacPherson (D4d3 Oct. 8, 2021) 2021 WL 4704890 (no. G059758) (nonpub. opn.) must have been feeling pretty buoyant about their chances on appeal. The plaintiff-respondents had defeated an anti-SLAPP motion, and then obtained a rare award of attorneys' fees. Awards of fees against anti-SLAPP movants are only available where the anti-SLAPP motion is frivolous or filed to cause unnecessary delay. (Code Civ. Proc., § 425.16(c)(1).) No such finding was made here, but the respondents argued it should be inferred under the implied findings doctrine.

The Court of Appeal disagreed. On the one hand, the court acknowledged it is true an appellate court usually infers the trial court made every implied finding necessary to support the order and review those implied findings for substantial evidence. (See Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1; Murray v. Superior Court (1955) 44 Cal.2d 611, 619; Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 708; Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1567.)

But on the other hand, the court noted that "[c]ase law is consistent in holding that some appropriate express findings are necessary to infer implied findings in cases in which attorney fees are imposed as sanctions." In support, the court discussed Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, at pp. 1070-1071, fn. 19 [implied finding of bad faith based on an express finding of frivolousness]; In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 143, 145 (Taeb) [same, and including "thorough recitation of the conduct for which the sanctions were imposed"]; and Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684, fn. 6 [though lacking express finding of frivolousness or unnecessary delay in awarding fees against anti-SLAPP movant, implied finding warranted because trial court's written tentative quoted section 425.16(c)(1), (2), stated that defendants had failed to respond to plaintiffs' argument that motion was frivolous, and stated plaintiffs were entitled to a monetary sanction under section 425.16(c)(1)].

(Note: For a related proposition, practitioners might also consider citing Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718. Sidney reversed a trial court's denial of a motion to amend a cross-complaint. The respondent argued the denial was based on an implicit finding the amendment was sought in bad faith. But the appellate court declined to infer that finding because "here, the trial court made clear in its written ruling...that its order denying petitioner leave to amend his cross-complaint was exclusively based on its erroneous holding that the statute of limitations had run....")

The court concluded the section 425.16(c)(1) fees were not supported even by the relatively paltry standard represented by Chitsazzadeh. The trial court did not issue a written tentative ruling. And at the hearing, the trial court did not mention section 425.16(c) or section 128.5, and did not even hum a few bars about sanctions, attorneys' fees, frivolousness, or intent to delay. Instead, the trial court's order simply stated, after denying the anti-SLAPP motion, "The court also finds that the Nielsen parties are therefore entitled to reasonable attorney fees per CCP § 425.16(c)." (Italics added.) As the Court of Appeal noted, "Use of the word “therefore” signifies that denial of the anti-SLAPP motion was the reason for awarding the [respondents] reasonable attorney fees."

"We cannot conclude the trial court made implied findings on frivolousness or intent to cause unnecessary delay because nothing in the record suggests the court even considered those issues."

The respondent also argued that the appellants had forfeited any challenge to the order because the appellants had not objected to the insufficiency of the order. The court disagreed. The trial court provided "reasonable specificity." (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1389). It's just that the trial court's reasons were wrong. The appellant does not have to object before arguing that.

Upshot: Be mindful of the implied findings doctrine, but do not be defeatist about it. The doctrine probably will only apply to the extent it is consistent with the trial court's reasoning. The Court of Appeal will be less inclined to deploy the doctrine to rewrite the trial court's decision. If you are in doubt, this may be an issue to discuss with an appellate attorney.

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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