Judgment Infected with Dozens of Errors, Still Affirmed (Mostly) on Appeal

Timothy Kowal, Esq.
February 17, 2021

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

In Patterson, wife cuckolded husband and bore two children by another man during their marriage. Through foreclosure, they lost the family home that husband owned separately, but some friends later acquired the deed and transferred it to wife.

After the couple separated, husband agreed to pay wife $60,000 in child support in exchange for visitation. Wife's lawyer, however, did not include the visitation terms in the agreement. Wife later chided husband she had "tricked" him out of his visitation rights. Wife then alleged there were no children of the marriage.

Wife allowed at one point that husband should have the house, but later reneged on that too.

The trial court found wife's actions "particularly calculated and vicious." The court concluded wife breached her fiduciary duties, and she was judicially estopped from claiming the house was community property after having proposed husband receive it in the property division. The court awarded $75,000 in sanctions against wife.

Wife appealed. Among the issues raised, wife argued the trial court erred by relying on no fewer than 26 items that were never admitted into evidence and thus not properly before the court. "We agree," said the Fifth District. The items included a declaration, filings from prior court proceedings, a visitation agreement, a deed of trust, assignments, a notice of trustee's sale, a bill of sale, letters, a valuation opinion, and income and expense declarations.

"However," it went on, letting the air out of wife's balloon, "a judgment may not be reversed unless an error was prejudicial and a different result was likely in absence of the error." (Citing Code Civ. Proc., § 475In re Marriage of Shimkus (2016)244 Cal.App.4th 1262, 1269.) Notably, wife "does not explain how the individual items were material or dispositive to the court's ruling."

Thus, none of these 26 judicial errors were prejudicial, and thus not reversible. Nor were the errors cumulatively prejudicial, as the findings were independently supported by substantial evidence, by way of testimony and a grant deed properly admitted.

But wife did prevail on appeal concerning a 27th piece of improperly considered evidence supporting the $75,000 sanctions order against her, as that amount was based entirely on an income and expense declaration that was not admitted into evidence. A declaration is not automatically received into evidence merely because it has been filed with the court. (In re Marriage of Shimkus, supra244 Cal.App.4th at p. 1271.) "[A]s with any evidence, a declaration must be marked and offered and is subject to objections before admission." (Ibid.)

The Fifth District suggested the trial court might have taken judicial notice of this evidence, but did not follow the correct procedure to do so. "[I]f the matters of which it takes judicial notice are "of substantial consequence to the determination of the action," the court must follow a specific procedure. (Evid. Code, § 455.) "If the trial court ... has taken ... judicial notice of such matter, the court shall afford each party reasonable opportunity ... before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." (Id., subd. (a).) That did not occur here. ... As a result, Kellee was not afforded a full and proper opportunity to "meet" this evidence."

But wife's victory likely may prove hollow, as the court remanded with directions for the trial court to conduct a new hearing on sanctions, and properly admit the evidence this time.

The Fifth District also held that wife had a point on the issue of judicial estoppel. The trial court erred in finding her pleading references concerning the property to amount to judicial estoppel. No surprise here, as judicial estoppel is a narrow doctrine. " ' "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary." ' [Citation.] The doctrine applies when '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' [Citation.]' " (In re Marriage of Taschen (2005)134 Cal.App.4th 681, 689-690.)

But again, the finding was supported on independent substantial evidence.

The upshot for appellants: Improperly admitted evidence by itself usually is not a strong grounds to appeal, as you will still be faced with a deferential substantial-evidence review concerning any proper evidence that supports the judgment.

The upshot for respondents: Do not rely on declarations to prove your case. Instead, be sure to have your client or witness testify to them so the matters become part of the evidentiary record.

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.