Legal News and Appellate Tips

Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question.

In Young v. Longstaff (D6 May 12, 2023 No. H050172) 2023 WL 3408533 (nonpub. opn.), the could determined that the absence of an oral record supported an affirmance via a memorandum opinion rather than a full legal essay. Young challenged the application of the statute of limitations, but did not include an oral record of the trial, involving four witnesses concerning Young’s acknowledgment of the debt and promise to pay it back. That all bore on the date the statute ran.

In such a case, no further examination would be fruitful. As People v. Garcia recognized, “the individually prepared legal essay, the product of countless hours of precious judicial time, is an impossible procedure for handling today's monstrous caseload, and in the majority of appeals it serves no useful social purpose.”

Takeaway: If you are the respondent and the appellant failed to supply an oral record, suggest that the court affirm by memorandum opinion under California Standards of Judicial Administration, Title 8, Standard 8.1 and People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. Appellate justices are openly split on this point.

On the side of relaxing the requirement of having an oral record, there is good news from Guzman v. Front Porch Communities and Services (D2d3 May 5, 2023 No. B314877) 2023 WL 3265696 (nonpub. opn.). The appellant there did have a reporter's transcript. But the appeal involved only a pure question of law. So the lack of an oral record did not affect review.

The Upshot: If you find yourself without a reporter's transcript, consider whether you have a good appellate issue based on a pure issue of law. But like the respondent did here, you will have to accept all the trial court’s factual findings, including any implied findings.

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:

1. Judges should issue more sanctions against frivolous SLAPP motions.

The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs.

2. Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)

Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.

Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.

A litigant failed to timely request a statement of decision before the end of a short trial.

Nice try, but this is not what a settled statement is for.

On appeal from the denial of his motion to set aside the judgment in Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771, Brannon came up with a clever application of the settled statement process. Remember that a settled statement is a summary description of the documents or oral proceedings in the trial court. Brannon put together a settled statement that said he never got notice of the October default. This, Brannon hoped, would be good grounds to get the default judgment vacated.

But the settled statement contradicted the declaration of Rok's counsel in the written record. Rok’s counsel declared under penalty of perjury that he mailed Brannon the default the day the court clerk entered it. So the court concluded “We reject this use of the settled statement.”

Besides, the court went on, “nonreceipt of the notice [of default] shall not invalidate or constitute ground for setting aside any judgment.” (Code Civ. Proc., § 587; Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 537.)

Comment: You should still consider the appellant’s example here and use a settled statement to fill gaps in your appellate record. Do not use a settled statement to try to rewrite the record, of course. But if documents or an oral transcript are not available to clearly show what happened, consider using a settled statement.

Some good possible applications of a settled statement:

• Show what happened during a sidebar

• Describe a demonstrative exhibit

• Describe what happened at a law-and-motion hearing

• Capture your request for an evidentiary hearing or a statement of decision

• Capture your objections to jury instructions

We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help would be for the appellate courts not to insist on an oral record where it’s pretty clearly unnecessary.

I wonder if that might be the case in Kendrick v. Wyckoff (D1d3 Mar. 21, 2023 No. A165494) 2023 WL 2592029 (nonpub. opn.). Wyckoff, a trust beneficiary, challenged the validity of a trust amendment. He claimed the trustee’s notice to beneficiaries under Probate Code 16061.7 was invalid. That sort of thing is normally determined just by looking at the documents.

But the Court of Appeal said it would not review the issue unless it had an oral record of the hearing. No oral record meant the order had to be affirmed: “Without a record of any evidence received” at the hearing, “we must presume the evidence supports the trial court's findings and its resulting orders were appropriate based on those findings.”

Comment:

The requirement that an oral record be supplied already imposes difficult technical and administrative burdens on less well-heeled litigants, but especially so given the court-reporter shortage. If the respondent indicates in its brief that, yes indeed, evidence was taken at the hearing, that is one thing. But where no party indicates there was any oral evidence taken, the appellate courts should stop letting their imaginations run away with them.

CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription): http://bit.ly/42N3evA

I discuss why there is a shortage of court reporters, why an oral record is indispensable to preserving appellate rights, and then demystify the settled-statement and agreed-statement procedure and offer practical applications.

The entire presentation may be summed up as: Get a court reporter….but if you can’t, here’s what to try instead.

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is:

Yep, you need a reporter's transcript.

Even if it really seems kind of silly to require a reporter's transcript, like in Beck, where the defendant’s anti-SLAPP resulted in the dismissal of exactly zero causes of action. He just got one allegation stricken.

But that was enough for a $25,000 fee award, without any reductions for the partial success. The appellate court reasoned that, although the trial court’s order did indicate it considered reducing the award, there was no reporter's transcript, so maybe it considered it there.

Takeaways:

1. Bring a court reporter to all dispositive hearings, even if they involve only questions of law and no testimony. Always assume the Court of Appeal will reach for the fact of the lack of a reporter's transcript for an easy affirmance—even if the reporter's transcript pretty clearly could have added nothing to the analysis.

2. Remember to consider requesting a statement of decision before submitting on a motion for attorney fees.

This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead.

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.

One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.”

That may be so. But there is someone else who wasn’t there, Three someone elses, in fact: the jurists on the appellate panel. All they will have is the same dry transcript that I have.

While appellate courts tend to defer to a trial judge’s sense of the case, this tends to run up against the great appellate maxim of “record cites or it didn’t happen.” Just saying “you had to be there” doesn’t quite cut it.

If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA.

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.