When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can request the statement of decision then.”
Not always, as the ARCO learned in Atlantic Richfield Co. v. California Regional Water Quality Control Board (D3 Dec. 5, 2022 no. C093124) 2022 WL 174141444 (nonpub. opn.). Following lengthy proceedings resulting in a cleanup order against ARCO, the Court of Appeal remanded the matter to the trial court for further proceedings. The trial court held a hearing that lasted all of 79 minutes. ARCO did not request a statement of decision before submitting. Instead, ARCO assumed it could wait until the trial court issued its written order, when it would have a 10-day period (plus a 5-day extension for mail service under CCP 1013) to request a statement of decision.
Not so. The trial court denied the request as untimely, because under California Rules of Court rule 3.1590(n), “When a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision . . . .”
ARCO then made an argument that was too clever by half—though it was supported by caselaw. ARCO argued that, although the proceedings only lasted 79 minutes, the judge must have spent a lot of time reviewing the voluminous record, and that would have taken more than eight hours. ARCO relied on Bevli v. Brisco (1985) 165 Cal.App.3d 812, 820.
But the court cast doubt on Bevli, and in any event did not follow it. Instead, the court followed In re Marriage of Gray (2002) 103 Cal.App.4th 974, including this quote from Gray explaining how to count to eight hours for purposes of determining whether you have to request a statement of decision at the hearing:
“We cannot realistically expect trial judges to keep stopwatches to record time spent off the bench in chambers, a home office, or at the kitchen table studying the law and evidence. Rather, the eight-hour rule in section 632 requires a simple and obvious mode of timekeeping that everyone, including attorneys, can keep track of. This means that, for purposes of keeping time of trial under section 632 in civil proceedings other than administrative mandamus (an issue not before us), the time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse. It does not include time spent by the judge off the bench without the parties present—lunch, for example—except for such routine recesses as occur during the day.”
The Upshot: Failing to request a statement of decision can affect the outcome of your appeal. (See here for an example.) You need to request a statement of decision before the matter is submitted if the proceedings are less than one day or eight hours. How do you count eight hours? Include all time in open court, including recesses—but not lunch and evening recesses.
But why risk it? Just ask for a statement of decision before submitting. Even better: file a written request for a statement of decision at the outset of the proceedings, identifying the key issues on which you want the court to make findings.
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 summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.