The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management confirmed that giving him custody of a young child was not in the child’s best interests. But the trial court refused to consider the ex-husband’s outbursts. This admitted refusal to consider these angry outbursts, mother argued, was an abuse of discretion.
But the Court of Appeal held: Outbursts? What outbursts? We see no record of any outbursts. Order affirmed.
You see, when you appeal, you have to show the Court of Appeal what happened during the trial court proceedings. The best way to do that is to have a court reporter transcribe every word of the proceedings. But that is expensive. Acknowledging this expense, the rules give financially-constrained litigants another way to provide an appellate record. This alternative is called a settled statement.
But in this case, the settled statement became a heavily-litigated affair, resulting in a version expurgated of the matters relevant to the mother’s appeal. In short, the worst of both worlds.
“A settled statement is a summary of the superior court proceedings approved by the superior court.” (Rule 8.137(a).)
An appellant's proposed statement must “[c]ontain a statement of the points the appellant is raising on appeal” and “[c]ontain a condensed narrative of the oral proceedings.” (Rule 8.137(d)(1) & (2).) The latter must include “a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states ... are being raised on appeal.” (Rule 8.137(d)(2)(A).) The respondent may file proposed amendments in response to appellant's proposed statement. (Rule 8.137(e)(1).) As apparently occurred here, the trial court may “[m]ake any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness relevant to the points that the appellant states ... are being raised on appeal.” (Rule 8.137(f)(3)(B)(i).) “ ‘As long as the trial judge does not act in an arbitrary fashion he has full and complete power over such a record.’ ” (Marks v. Superior Court (2002) 27 Cal.4th 176, 195.) “Nevertheless, ‘under the rules it is the duty of the trial court to settle a proposed statement, not to make one.’ ” (Ibid.)
The mother tried to use a settled statement here. The mother filed a motion for a settled statement, explaining the issues on appeal, and including a proposed narrative of the oral proceedings that included the outbursts.
At the hearing, the trial court indicated it did not think the outbursts were relevant. The mother explained her position that, yes, the outbursts were indeed relevant, and that this was the very issue she was asking the Court of Appeal to decide.
The trial court removed the outbursts from the settled statement. The mother objected, attaching a declaration reiterating the outbursts that she wanted included in the settled statement. But to no avail.
First, the mother filed a writ petition asking the Court of Appeal to direct the trial court to include the outbursts in the settled statement. The mother’s argument involved two basic points of appellate procedure:
First, the mother argued that a trial court does not get to decide which issues are considered by the court of appeal. (Rhue v. Superior Court (2017) 17 Cal.App.5th 892, 896 (“Rhue”).)
Second, the mother argued the trial court may not use the power of the record-setting process to conform the record to support its own ruling. (Stevens v. Superior Court In and For City and County of San Francisco (1958) 160 Cal.App.2d 264, 269 (“Stevens”).
Following from these two procedural points, the mother reasoned the trial court may not expurgate matters from a settled statement simply because the trial court disagrees that the matters are relevant to the appeal, because what issues may be raised on appeal are simply beyond the purview of the trial court.
But the Court of Appeal summarily denied that petition.
On appeal, the mother raised the same argument. She argued the trial court abused its discretion in omitting the outbursts from the record. The mother argued in her brief that matters not strictly testimony, like gestures and tone of voice, are properly included in a settled statement. (In re Horton (1991) 54 Cal.3d 82, 89.) A parent’s trial court behavior is relevant to child custody. (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1287.) And that it is an abuse of discretion to prevent a party from submitting the record required to argue an appellate point. (Stevens, supra, 160 Cal.App.2d at p. 269.)
But the Court of Appeal rejected these arguments. The court reasoned: “None of the authorities cited by Mother indicate outbursts or admonitions relating to outbursts must appear in a settled statement.” (Emphasis added.)
Comment: But mother did not argue that the cases directly held that outbursts “must” be included in a settled statement. Mother’s argument was that the outbursts were relevant to the issues on appeal, and that the trial court may not arbitrarily expurgate matters relevant to the appeal. To permit otherwise would be to allow the trial court, by such indirect means, to cut off a litigant’s right to appeal. This is improper. (See MacDonald v. Superior Court (1977) 75 Cal.App.3d 692, 696 [order barring appellant from prosecuting appeal as postjudgment discovery sanction held improper; “[w]e are not aware of any legal basis for an order of the superior court shutting off an appeal authorized by the state Constitution, the applicable appeal statutes, and the California Rules of Court.”]; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222, holding modified by Laborde v. Aronson (2001) 92 Cal.App.4th 459 [“[W]e consider it highly inappropriate for a trial court to attempt to dissuade a litigant from exercising his or her right to appeal.”].)
The Court of Appeal went on to state that the mother “does not cite her proposed condensed narrative of oral proceedings such that we can discern what outbursts or admonitions, if any, she proposed that were refused by the trial court. Rather, to the extent Mother suggests what outbursts she had in mind, she relies on the declaration she submitted in support of her objections to the corrected condensed narrative of the oral proceedings and not any actual proposals.” As to the mother’s objections to the settled statement, the Court of Appeal stated that she had included “editorial comment and facts not presented” at the hearing. Thus, the trial court did not abuse its discretion in overruling these objections.
Comment: In reviewing the mother’s opening brief, it appears that she did include her proposed condensed narrative in the record. (1AA 143 [Proposed Settled Statement]; 1AA 175-2AA 311 [Second Amended Proposed Condensed Narrative]; 2AA 284-413 [Corrected Condensed Narrative].) She also included her objections and declaration to the settled statement. (2AA 414-487.) The extensive drafting and litigation over the settled statement — including hiring a certified appellate specialist — suggests the mother likely incurred significantly more expense concerning the settled statement than had she just hired a court reporter. And yet the Court of Appeal rejected the mother’s claim of error regarding the settled statement because, in effect, the mother’s brief should have cited to the outbursts as reflected in a different part of her appellate appendix.
The Upshot: Do not count on a settled statement. Yes, it is in the rules. But this is not the first time I have heard that a trial judge refused to provide a settled statement, and that a Court of Appeal refused to do anything about it. Do not be misled into thinking there is a way to furnish an appellate record other than a reporter's transcript. Yes, this sets up an access-to-justice problem. The Legislature needs to fund court reporters, or re-institute its audio-recording program (which was nixed, by the way, at the behest of the reporters’ lobby, as a presiding justice recently confirmed for me.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim 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.
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