Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record).

Watch the clip here.

This is a clip from episode 19 of the California Appellate Law Podcast, available here.

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.

Appellate attorney Anne Grignon suggests the California appellate courts seem to be more willing to review arbitration awards lately. Anne discusses with Tim Kowal and Jeff Lewis how questions concerning whether the case should be arbitrated, and questions involving important policy interests, may be more likely to receive appellate review. If you are in arbitration, these are important things to consider, whether you are looking to get appellate review or avoid it.

Watch the clip here.

This is a clip from episode 19 of the California Appellate Law Podcast, available here.

One of the criticisms against the uncitability of unpublished appellate opinions is that the fact they are not published feeds a suspicion they are not always thought quite all the way through. Certainly you are more likely to find typographical errors in an unpublished opinion, for instance, than you might in a published one. And I often find myself a bit unsatisfied at the level of legal analysis in an unpublished opinion.

But an unpublished analysis is better than no analysis at all. That is what the litigants got in Center Street Dev. Co. v. Superior Court (D1d2 Nov. 24, 2021) no. A160894. Based on the briefing (downloaded for a fee from the Superior Court’s website), the real estate dispute involved 2,750 acres on the Mendocino-Sonoma County line just off Highway 101. Several heirs held an interest in the property. One of the heirs, Robert, sold his 20% interest, plus his fractional interest as beneficiary of a trust and as a beneficiary of the trust. The other heirs obtained an adjudication the transfer of the 20% was a breach of fiduciary duty. The transferee moved for summary adjudication to quiet title to the transfer as to the other fractional interests.

The trial court denied summary adjudication, finding that the transfers of the other fractional interests were invalid because Robert never actually acquired an interest from the estate, and because Robert was barred from transferring under the trust’s spendthrift provisions.

As summary adjudication orders are not appealable, the plaintiff-purchaser petitioned for a writ of mandate. The First District Court of Appeal issued a Palma notice, indicating it may issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.)

After briefing, the court concluded:

“Petitioner's right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing, and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; 1 * attr(page-number) see Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 12401244.)”

“In its August 20, 2020 order, respondent court erred by granting summary adjudication on real party in interest's second (quiet title) and third (declaratory relief) causes of action. Therefore, let a peremptory writ of mandate issue directing respondent superior court to set aside and vacate the August 20, 2020 order granting real party in interest's motion for summary adjudication and to enter a new order denying the motion.”

That’s it. The court provided no other analysis. The court did not explain why the trial court was incorrect that Robert never acquired the real property interest from the estate. And the court did not explain why the spendthrift provisions in the trust did not prevent Robert from transferring the property.

Having only read part of the briefing (it is not available except for a charge of $0.50 per page), this observer cannot tell why the trial court was “obviously” wrong. It is safe to say the trial judge did not think she was “obviously” wrong. It is clear the defendant did not think the judge was “obviously” wrong.

Under article VI, §14 of the California Constitution, the appellate courts of this state are required to provide reasons for their rulings: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” An opinion need not be exhaustive, but “a decision directing the issuance of a peremptory writ in the first instance is a ‘judgment’ ” within the meaning of provisions of Art. VI, “and the court must set forth the grounds for such a decision.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232.) “[A]n opinion sufficiently states ‘reasons’ if it sets forth the ‘grounds’ or ‘principles’ upon which the justices concur in the judgment.”

The opinion in Center Street does not conform to this standard. That much, it seems safe to say, is obvious. If the court missed this obvious point, is it possible its summary reversal missed other points as well?

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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Can you appeal an order on a motion to enforce a settlement agreement? And if so, why aren’t these orders listed in the appealable orders statute of Code of Civil Procedure section 904.1?

The functional answer to the question is yes: orders on motions to enforce a settlement probably are appealable. But the court in *Rezzadeh v. Chiu* (D5 Dec. 13, 2021) 2021 WL 5873074 (nonpub. opn.) suggests the reason this is not obvious in the statute is that litigants are not supposed to have to take appeals from the orders. Instead, trial courts are supposed to be entering judgments on those orders. And then the appeal, naturally, would be taken from the judgment.

In Rezzadeh, the parties settled a lawsuit over the appellant-buyer’s purchase of an apartment building. The buyer could not come up with funding in time, and the respondent closed the escrow. The buyer moved to enforce the settlement agreement under Code of Civil Procedure section 664.6, but the trial court denied it, finding time was of the essence and the respondent had properly canceled the escrow based on the buyer’s failure to fund.

The order denying the appellant-buyer’s motion to enforce the settlement was an appealable order. And the order was reversed on appeal, on the grounds that, while time was of the essence, the appellant still was entitled to notice and a contractual three-day cure period, which he had not been given.

On the appealability question, the court cited to *Hines v. Lukes* (2008) 167 Cal.App.4th 1174, where an order granting a motion to enforce a settlement was held appealable because “the effect of the order ... was to finally determine the rights of the parties in this action by enforcing the settlement agreement.” (Id. at p. 1183.)

What about an order denying a motion to enforce settlement? The Rezzadeh could found there was “no functional difference.” In either event, the trial court's order “functionally terminated all litigation between the parties.” “Indeed, if this were not the case the trial court's order would be insulated from any form of review....”

Ok, so orders granting motions to enforce a settlement are appealable. And orders denying motions to enforce a settlement are appealable. So why didn’t the legislature just say so in section 904.1? Rezzadeh suggests two answers:

First, the court suggests that orders on motions to enforce a settlement under section 664.6 should be entered as judgments. The court states that “the [trial] court's entry of judgment is a necessary component of enforcement under section 664.6, regardless of how the agreement is enforced. Orders finally resolving disputes should thus be treated as appealable judgments if the court does not enter a separate judgment.” So if the trial court enters a judgment, obviously the appeal would be taken from the judgment, and no question of appealability arises.

Second, under section 664.6, the settlement agreement is itself converted into a judgment. And thus the order on the motion to enforce it is a postjudgment motion, enforceable as such under section 904.1(a)(2). Quoting from Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793 at page 809, the court notes: “Prior to the enactment of section 664.6, a party seeking to enforce a settlement agreement had to file a new action alleging breach of contract.... Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” The Rezzadeh court then notes that this happens by converting the settlement agreements into judgments that are then enforceable by the original court. (Weddington, supra, at p. 797.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Hines, supra, 167 Cal.App.4th at p. 1182.) It may then enforce or not enforce the judgment through its inherent powers and the summary proceedings of section 664.6. (Machado v. Myers (2019) 39 Cal.App.5th 779, 796 fn. 13 (Machado); Wackeen v. Malis (2002) 97 Cal.App.4th 429, 432 fn. 1, 439– 440.)

The parties here did not dispute there was a binding and enforceable agreement. So the settlement should be considered a judgment, and the order a postjudgment order appealable under section 904.1(a)(2).

(What happens if a settlement is found not to be binding and enforceable as a judgment? The court does not say.)

Settling a case is not the end. You may need to be prepared to invoke your appellate rights until a settlement is fully executed.

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CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you to get a statement of decision? (The answer is no, and as the article explains, courts may even actively steer you into waiving the statement of decision.)

The article was originally posted here.

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The frustrating rule against citing unpublished appellate opinions in California courts, Rule of Court 8.1115, has an important exception: if a federal case has cited the unpublished California opinion, then you can cite to it by way of the federal case. Appellate attorneys Frances Campbell, Jeff Lewis, and I discuss.

Any federal judges looking for a way to perform a public service – and earn a lot of gratitude from California attorneys – should cite liberally to unpublished California appellate opinions.

Watch the clip here.

This clip is from the California Appellate Law Podcast episode 18, available here.

Judges have a lot of leeway to exclude evidence at trial. But in Brubaker v. Andy Strum (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought the evidence of harassment was barred by the doctrine of issue preclusion. But the judge misunderstood the doctrine of issue preclusion. That was a legal error. As a legal error was the basis of the exclusion, the exclusion order had to be reversed.

In Brubaker, the appellant wife obtained a two-year restraining order in February 2018. Despite the restraining order, wife complained of husband's persisting harassment. The parties' marriage dissolution trial concluded a year later in February 2019. Before the restraining order expired, wife sought an order extending it.

But the husband successfully moved to exclude all evidence of harassment prior to February 2019, on the grounds that it should have been raised in the dissolution trial, and thus the dissolution judgment precluded the issue from being raised in wife's motion to extend the restraining order.

The types of harassment that can support a DVRO are very broad. Family Code section 6320 includes in its definition of "abuse" not only intentional or attempted bodily injury, but also "harassing" or "disturbing the peace of the other party." (In re Marriage of F.M. & M.M., supra, 65 Cal.App.5th at p. 115; see §§ 6203, 6320.) This means that “[a]nnoying and harassing an individual is protected in the same way as physical abuse.” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398 (Perez); see Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291 (Ritchie).)

To prevail on a motion to renew the order, a protected party has the burden to show by a preponderance of the evidence that a reasonable person would have a " 'reasonable apprehension' " of future abuse. (Ritchie, supra,115 Cal.App.4th at p. 1290.)

So the respondent husband decided to get creative to exclude the evidence of his harassment, which appears to have included a lot of needless and unsolicited verbal confrontations, needling the wife about various and sundry grievances. The husband argued the issue of domestic violence came up in the dissolution trial a year ago in 2019. That issue had to be decided for purposes of custody. And sure enough, the court had found the husband had complied with the original restraining order and had "not committed any further acts of domestic violence." The trial judge thought that was a sound argument, and so excluded all such evidence from consideration of the renewed restraining order.

But the Court of Appeal reversed. For issue preclusion to apply, the issues must be identical, and the court found that the issues were not identical. At the dissolution trial, the issue was whether the husband had rebutted the presumption under Family Code section 3044 that granting him custody was detrimental to the children's best interest. But at the restraining order hearing, the issue was whether the wife had a reasonable fear of future abuse.

In other words, although the trial court had found no "further acts of domestic violence," it was still possible the wife could establish a reasonable apprehension of future abuse. Evidence of actual further violations is not strictly required. (See Ashby v. Ashby (2021) 68 Cal.App.5th 491, 515-516 [“a party's violation of [a domestic violence restraining order] can support a finding of reasonable apprehension,” but “the reverse is not true”: compliance with a domestic violence restraining order does not “precludea finding of reasonable apprehension”]; Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 306-307 [issue preclusion does not apply where a finding from an earlier action is relevant to “but does not resolve the inquiry” in the later action].)

The trial court also wrongly believed it could not consider the evidence underlying the original restraining order.

On appeal, the reviewing court applies the abuse of discretion standard of review to a trial court's rulings on the admissibility of evidence. (Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 630; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.)

But that is not exactly what the Court of Appeal did here. The Court of Appeal held that "[b]y excluding relevant evidence of ]the appellant wife's] fear of future abuse, the court abused its discretion by limiting [the appellant's] ability to meet her burden of proof. (See Perez, supra, 1 Cal.App.5th at p. 396 [““ ‘If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law.’ ””]; Eneaji v. Ubboe, supra, 229 Cal.App.4th at p. 1465 [a decision “predicated on an erroneous understanding of the applicable law ... must be reversed and remanded”].)

Under the abuse of discretion standard of review, reviewing courts typically at this point would consider whether the trial court's error resulted in prejudice to the appellant. But the court here did not discuss whether the error prejudiced the appellant. The court appears to have treated the evidentiary ruling not only as an error of law (rather than an abuse of discretion), but an error warranting per se reversal.

The upshot: Evidentiary rulings normally are difficult to challenge on appeal, being subject to the deferential abuse of discretion standard. But when an evidentiary ruling is based on an error of law, you may be entitled to something more like de novo review. That is what happened in this case.

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Who decides whether a dispute must be arbitrated? The court, or the arbitrator?

By a vote of 3 appellate attorneys, the court should decide.

Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine the question of arbitrability. Anne explains to appellate specialists Tim Kowal and Jeff Lewis the arguments that led the Court of Appeal to hold arbitrability must be decided by the trial court, not the arbitrator.

Watch the clip here.

This is a clip from episode 19 of the California Appellate Law Podcast, available here.

Appellate attorney and author Myron Moskovitz joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

Why appellate courts should provide brief explanations when denying writ petitions.
Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
Statements of Decision
Why the Appellant's Reply Brief may be the most important brief.
Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, Winning an Appeal. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

Resources mentioned in this episode:

Myron's books, Winning an Appeal and Strategies on Appeal

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Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.

Watch the clip here.

This is a clip from episode 19 of the California Appellate Law Podcast, available here.

Somewhere or other most attorneys have heard that you can get attorney fees if your opponent denies a request to admit a fact and you go on to prove that fact at trial. These are called "costs of proof" fees. You probably assumed this was more trouble than it was worth. But what if I told you that you could recover nearly $239,000 in fees this way? Now it seems worth a shot, doesn't it?

That's what the defendants got in Spahn v. Richards (D1d3 Nov. 30, 2021) __ Cal.Rptr.3d (2021 WL 5576615, no. A159495) as costs-of-proof fees. The defendant homebuilder asked the plaintiff developers to admit the parties had no agreement obligating the defendant to build the home. The existence of a contract was rather the whole case, so the plaintiffs denied the RFA. That seems hardly surprising: the plaintiff might just have dismissed the whole lawsuit before admitting that the premise for the lawsuit was false. The defendants then filed an unsuccessful motion for summary judgment. At trial the defendants moved for a directed verdict, but the court denied that as well (calling it a close call). The jury then returned a defense verdict.

The trial court then granted the defendant's motion for costs-of-proof fees in the amount of more than $239,000.

And the Court of Appeal affirmed.

Costs-of-Proof Fees:

Under section 2033.420, if “the requesting party proves the truth of an RFA previously denied by the other party, the requesting party may move the court for an order requiring the other party pay the reasonable expenses incurred in making that proof, including reasonable attorney fees.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 690 (Doe).)

Pursuant to section 2033.420, subdivision (b), “the trial court shall order the party denying the RFA to pay the costs of proof unless: (1) an objection was sustained to the request or a response was waived; (2) the admission sought was of no substantial importance; (3) there was reasonable ground to believe the party refusing to admit the matter would prevail on the matter; or (4) there was other good reason for the failure to admit.” (Doe, supra, 37 Cal.App.5th at p. 690.) The party seeking to benefit from an exception listed in section 2033.420, subdivision (b) “ ‘bears the burden to establish the exception.’ ” (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 523.)

A "good reason" may include "a reasonably entertained good faith belief" that the party will prevail on the issue. (Doe, supra, 37 Cal.App.5th at p. 690.) But the belief "must be grounded in the evidence; it cannot be based merely on ‘hope or a roll of the dice'" or on the fact that the parties "'hotly contest'" the issue. (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 116 (Arnold Engineering).) A party's reliance on “self-serving testimony” may be insufficient to establish a reasonable refusal to admit a request for admission. (Doe, at p. 691.)

Here, the court concluded the trial court did not abuse its discretion in concluding the plaintiffs had reasonably entertained good faith belief that they would establish a contract. True, the defendant homebuilder had submitted a contractor qualification request, and had solicited bids from subcontractors, and had stated he would investigate increasing his insurance coverage for the project. But the defendant had not actually submitted a written bid, and there was never an agreement or any specific discussion about the costs – which would vary from around $500,000 to over $1 million. On this basis, the trial court could conclude the plaintiffs did not reasonably deny the RFAs demanding admission that there was no contract.

The court rejected the plaintiffs' argument that the trial court's denial of the defendant's motions for summary judgment and directed verdict barred a costs-of-proof award. This would create a per se rule, and the court declined to fashion a per se rule. More strikingly, the court noted that those motions also give the trial judge not discretion to weigh evidence or determine credibility. The court does have this ability in a costs-of-proof motion. And this suggests that litigants also have a duty to not only to determine their cases are supported by evidence, but to evaluate whether the fact-finder is likely to find that evidence credible. In a footnote, the court confirms that, as other courts have held, "the inquiry on a costs of proof motion is not “whether the litigant had some minimum quantum of evidence to support its denial (i.e., ‘probable cause’),” citing Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 119 (Arnold Engineering). and Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 526.

Comment: The court did not address one important thing. Recall that the RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence. I had never envisioned costs-of-proof fees to encompass substantially all of the case. But that seems to be the upshot here. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution.

Takeaway: While parties are permitted to request admissions on ultimate issues, I have never found that a fruitful exercise because all you get is a denial and then a nonspecific narrative in the accompanying form rog 17.1, regurgitating the responding party's entire theory of the case. But after Spahn, I am going to strongly consider taking all the CACI elements of every cause of action and defense in the case and turning them into RFAs to my opponent. And then reminding my opponent in every negotiation and settlement conference in the case that if they fall rather short on the more unlikely elements of their case, they will be facing a substantial costs-of-proof motion after they lose.

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I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment.

That is what happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). Plaintiff alleged he had an oral argument to buy a house from the defendant. They would have put it in writing, you see, but the plaintiff wasn't able to get the loan himself so it was left in the defendant's name. The trial court rejected the plaintiff's theory.

The court issued a "Ruling on Trial." The Ruling on Trial reasoned that the plaintiff was essentially arguing for a resulting trust, and it was barred by the statute of frauds.

On appeal, the plaintiff argued that a resulting trust is not subject to the statute of frauds.

No matter, the Court of Appeal held. No one requested a statement of decision, and there is no reason to think the “Ruling on Trial” was meant as a statement of decision. "The ruling, therefore, is merely a tentative decision, which may not be used to impeach the judgment. (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 551–552 [where no party requested a statement of decision, the court's “written opinion and ruling was not a statement of decision but merely a tentative decision”]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw) [a tentative decision cannot be used to impeach a judgment on appeal].)"

A recent published case observed that the implied findings doctrine applies wherever a statement of decision was available but not requested. In Gamboa v. Northeast Community Clinic (D2d7 Nov. 30, 2021) ___ Cal.Rptr.3d (2021 WL 5575536, no. B304833), the trial court denied a motion to compel arbitration. Affirming, the Court of Appeal concluded the trial court impliedly found there was no agreement to arbitrate, quoting Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 at page 842: “Because a statement of decision was available but not requested, we apply the doctrine of implied findings and presume the court made all factual findings necessary to support its order—to the extent substantial evidence supports such findings.”].)

And in still another recent published case of BMC Promise Way, LLC v. County of San Benito (D6 Nov. 1, 2021) ___ Cal.Rptr.3d ___ (2021 WL 5631558, no. H046707), a similar thing happened. "Plaintiff refers repeatedly in its opening brief to an “oral statement of decision.” But a statement of decision must be requested (Code Civ. Proc., § 632), and no party requested one here. As such, we review the judgment without regard to oral statements made by the trial court at the hearing. (Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 825.)"

The Chiasson court went on to explain that, "to the extent the court erroneously applied the statute of frauds in its ruling, we must presume it corrected the error before entering the final judgment. (Shaw, at p. 268.) Moreover, under the doctrine of implied findings, we must also presume the court made the necessary factual findings to reject the Orlemanns’ resulting trust defense. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140 [where the parties did not request a statement of decision, the reviewing court “must assume that the trial court made whatever findings are necessary to sustain the judgment”].)"

I once heard a trial judge remark that, when he issues his initial tentative ruling after a trial, he labels it a "Final Statement of Decision." Under California Rules of Court 3.1590(a), the court "must announce its tentative decision," and subdivision (b) states that the tentative decision is not binding. So it doesn't matter that it is called a "Final Statement of Decision" because by operation of the rules it is not binding. But by calling it a "Final Statement of Decision," the judge reasoned that some litigants may be dissuaded from requesting a formal statement of decision, and thus insulate the judgment from challenge on appeal.

Do not fall into this trap. If you want to challenge a judgment after a bench trial, request a statement of decision. Do not assume you may challenge the minute order or tentative ruling or "ruling on trial" or whatever else the judge might issue. If no one has formally requested a statement of decision, chances are there is no statement of decision. And that means you are up against the implied findings doctrine, which basically means your changes of appellate success are in the statistically undetectable region.

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