Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order.
In Lemus v. Abdeljawad (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But the plaintiff got the default judgment under suspicious circumstances. The defendant never received the summons or complaint. When the defendant learned of the default, counsel sent emails to the plaintiff’s counsel asking for the complaint. Counsel left voicemails for plaintiff’s counsel. But plaintiff never responded, and instead pushed ahead to get a default judgment.
In opposing the defendant’s motion to set aside the default judgment, the plaintiff’s attorney even admitted having received the emails and voicemails from the defendant’s attorney, but never explained why he never responded. After a hearing, the trial court set aside the default judgment.
The plaintiff appealed, but did not provide a reporter's transcript of the hearing. The Fourth District Court of Appeal held this failure forfeited the plaintiff’s appeal. “Given the fact that the applicable standard of review is abuse of discretion, the absence of a record of oral proceedings is fatal to plaintiff's claim of error.”
Because of the principle that judgments are presumed to be correct, “lack of a verbatim record of... proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court....‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
“Although in certain instances a reporter's transcript may not be necessary, including if an appeal involves a legal issue requiring de novo review [citation], on issues... involving the abuse of discretion standard of review, a reporter's transcript or an agreed or settled statement of the proceedings is indispensable.” (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 79-80.)
Why should a reporter's transcript be necessary when no oral testimony was involved? The court explained: “A record of oral proceedings would appear particularly relevant in this case because defendant's motion was supported primarily by his own declaration; plaintiff's opposition was supported primarily by the declaration of plaintiff's counsel; and both defendant [in pro per] and plaintiff's counsel participated in the hearing on the motion. Thus, the oral proceedings presumably provided the trial court with an opportunity to inquire directly of each declarant in order to clarify any ambiguous, inadequate, or inconsistent statements made in their declarations and to assess each declarant's credibility. Absent a reporter's transcript, this court is unable to determine what transpired and cannot conclude that the trial court abused its discretion when it ultimately decided to vacate the default judgment. Since plaintiff, as the appellant, bears the burden to establish error on appeal, the absence of an adequate record compels the appeal to be resolved against him.”
So even though it does not appear anyone was sworn in, the two declarants of the declarations on which the court’s ruling was based participated at oral argument. The Court of Appeal suggests here (though without citing any authority) that statements made during oral argument may be used to determine the credibility of written declarations.
The Court of Appeal went on to hold that the record, such as it is, did not establish an abuse of discretion.
Comment: I am grateful the court chose not to publish this opinion. For the reasons I explained in another recent case – a much closer call – I think it is improvident to hold a bright-line rule that the lack of a reporter's transcript results in an automatic forfeiture.
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. 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 tkowal@tvalaw.com or (714) 641-1232.
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