Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Prejudicial Error

Courts Really Mean It That Written Findings Are Required to Rebut the Fam. Code § 3044 Domestic-Violence Presumption

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no. D078855) 2022 WL 4138735 (nonpub. opn.) held that the 50/50 custody order could not stand, because the family court failed to make written findings on the seven statutory factors. (Fam. Code, § 3044(b)(2).)

Here, the family court acknowledged the presumption, and concluded that it was “rebutted.” But this was not enough. The trial court must undertake two steps before concluding that the presumption of section 3044 has been overcome.

And the failure to make the findings was prejudicial error. But the court’s analysis on this point is underwhelming. And it seems to run afoul of the Supreme Court’s F.P. v. Monier holding from 2017 that missing findings are not structural error, and real prejudice has to be shown. On the record here, it appears the father easily could have rebutted all of the section 3044 factors.

On remand, I suspect the family court will simply make the missing findings to support to same 50/50 custody result.

Read More
Failure to Make Required Findings Held Reversible Per Se

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered No in F.P. v. Monier. Instead, to be reversible, the trial court’s failure to make findings must prejudice the appellant.

But the Fourth District held the opposite in a published opinion in Abdelqader v. Abraham (Mar. 10, 2022 D4d1) --- Cal.Rptr.3d ----. The trial court failed to make required findings, and on that basis, the Court of Appeal reversed. Although the respondent argued the error was harmless, the court disagreed. The court essentially concluded the failure to make findings was a structural defect — the precise argument the Supreme Court rejected in Monier.

Comment: While I strongly agree that litigants deserve reasons for a court’s decision, the court’s analysis in Abdelqader is unsatisfying. The court furnished no basis to distinguish the Supreme Court’s Monier holding. In fact, the court did not even mention Monier.

The Upshot: In any custody matter in which the presumption under Family Code section 3044 is triggered, look hard for any missing findings. Under Abdelqader, that defect is reversible per se.

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

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.

Read More

Tags

Podcast (99)
Videos (90)
Appealability and Appealable Orders (33)
Legal Writing (26)
Abuse of Discretion (24)
Mischief (21)
Unpublished Opinions (21)
Splits of Authority (20)
Notices of Appeal (19)
Stays on Appeal (19)
California Supreme Court (19)
Statements of Decision (18)
Anti-SLAPP (18)
Waiver and Forfeiture (17)
Record on Appeal (16)
Arbitration (16)
Attorney Fees (15)
Oral Argument (14)
Dismissals (14)
Judgment Enforcement (14)
Sanctions (13)
Dissents (13)
Briefing (12)
Evidentiary Objections (12)
Exclusion of Evidence (12)
Trial Strategy (12)
Preliminary Injunctions (11)
Timeliness (11)
Family Law (11)
Timely and Untimely Appeals (11)
New Trial Motions (11)
Mootness (11)
Jurisdiction (11)
Appellate Sanctions (11)
Civility (10)
Experts (10)
Collateral Orders (10)
Federal Courts (10)
Motions for Reconsideration (10)
Dismissed Appeals (9)
Writ Petitions (9)
Implied Findings (9)
CCP 998 Offers (9)
Summary Judgments and Summary Adjudications (9)
Settlements (8)
Posttrial Motions (8)
Appealability (8)
Trial Procedure (8)
Disqualification (7)
Default Judgments (7)
Ninth Circuit (7)
Probate Appeals (7)
Respondent Arguments (7)
Stipulated Judgments (6)
Admission of Improper Evidence (6)
Appellate Bonds (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Standards of Review (6)
Mediation (6)
Motions to Vacate and Set Aside Judgments (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Depublished Opinions (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Trial Irregularities and Structural Errors (5)
Standing (5)
Petitions for Review (5)
Motions to Vacate (4)
Expert Opinions (4)
Trust and Probate (4)
Notices of Entry (4)
Frivolous Motions (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Excessive Damages (4)
Disentitlement Doctrine (4)
Prejudicial Error (3)
Landlord Tenant (3)
Appealable Orders (3)
Frivolous Appeals (3)
Stays (3)
Recovery of Costs (3)
Demurrers (3)
Pretrial Procedure (3)
Summary Judgment (3)
Amicus Briefs (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Litigation Tips (3)
Motions to Dismiss (3)
Jury Instructions (3)
Jury Waivers (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Tentative Rulings (2)
Contempt (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
Class Actions (2)
Record Designation (2)
Appeals Dismissed (2)
Premature Appeals (2)
ADA and Unruh Accessibility Actions (2)
Law and Motion (2)
Harmless Error (2)
Podcasts (2)
Pretrial Issues (2)
Stipulated Reversals (2)
PAGA Actions (2)
Alter Ego (2)
Legal Practice (2)
Remote Arguments (2)
Appellate Briefing (2)
Post Reversal Issues (2)
Comments (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Untimeliness (2)
Trial by Reference and Pro Tem Judges (2)
Invited Error (2)
Constitutional Law (2)
Forfeiture and Waiver (2)
Attorney Client Privilege (2)
Waiver (2)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Attorney Fees - CCP 1021.5 (1)
Third Parties and Nonparties (1)
Covid (1)
Settled Statements (1)
Typeface (1)
Attorney Feese (1)
Judicial Estoppel (1)
New Arguments (1)
Writs of Mandamus (CCP 1085) (1)
Clear and Convincing (1)
Family Court (1)
Mistrials (1)
Typography (1)
Attorney Misconduct (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
U.S. Supreme Court (1)
Bankruptcy (1)
Employment Law (1)
Judicial Notice (1)
Closing Argument (1)
Referral Fees (1)
Trade Restraints (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Benefits Obtained Trespass Damages (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Treble Damages (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Unsupported Arguments (1)
Ninth CircuitAbuse of Discretion (1)
Per Se Errors (1)
Trespass (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Anecdotes (1)
Common Interest Doctrine (1)
Restraining Orders (1)
Nonsuit (1)
Consenting to Judgments (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Waived and Forfeiture (1)
Civil Code 3334 (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Motions to Quash (1)
Preclusion (1)
Stare Decisis (1)
Civil Theft (1)
Exhaustion of Remedies (1)
Punitive Damages (1)
Support Awards (1)
Constitutional Litigation (1)
Free Exercise (1)
Landlore Tenant (0)
Appellate (0)
Split of Authority (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
Notice of Appeal (0)
crossmenuchevron-down