There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal.
And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a right to mandatory intervention.
In short, a debtor colluded with plaintiff, a friendly creditor, to avoid paying a $5.4 million judgment it owed to Amazon. Amazon, an unsecured creditor, was denied intervention, but won on appeal on the basis of the collusion exception under Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543.
But Amazon almost lost this appeal by failing to provide a complete record. Amazon had raised the exception in the trial court by way of a supplemental brief. But on appeal, Amazon did not even include that supplemental brief in the record.
The court allowed Amazon to supplement the record with that brief, but at that point the court noticed that Amazon also had failed to include the underlying motion to intervene, as well as the reply brief and the complaint-in-intervention.
In the usual case, these record defects would have been fatal. Amazon should be very grateful of the court’s indulgence here.