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.

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Tag: Record on Appeal

Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.

At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial.

No problem, the Court of Appeal held. Under Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson), if the circumstances suggest the exhibit was intended to be offered and admitted—that is, it was authenticated, discussed at trial, and there was no dispute about its admissibility—the exhibit may be deemed admitted on appeal.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

(But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.)

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Read This Before Using a Settled Statement for Your Appeal

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.

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.)

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“Impossible” Burden Met on Appeal: But Dissent Disagrees

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) loses at trial, and argues on appeal that its case was so truly overwhelming that only an unreasonable fact-finder would have been left unpersuaded.

With that in mind, there are two interesting things about Missinato v. Missinato (D2d7 Apr. 15, 2022 no. B305989) 2022 WL 1124871 (nonpub. opn.). First, it is surprising because the court found the defendant’s statute-of-limitations defense so overwhelming that only an unreasonable person would be unpersuaded. Second, one of the panel was unpersuaded.

That seems awkward, no?

There are several things about this opinion I find really shocking. #AppellateLinkedIn, take a look and let me know your thoughts.

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Lack of Reporter’s Transcript Fatal to Appeal of a Discretionary Ruling

Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order.

In *[Lemus v. Abdeljawad] (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But the plaintiff got the default judgment under suspicious circumstances. The defendant never received the summons or complaint. When the defendant learned of the default, counsel sent emails to the plaintiff’s counsel asking for the complaint. Counsel left voicemails for plaintiff’s counsel. But plaintiff never responded, and instead pushed ahead to get a default judgment. When the defendant moved to set aside, the plaintiff admitted having received the defendant’s requests for the complaint, but did not explain why he never responded. The trial court set aside the default judgment.

When the plaintiff appealed, he failed to include the reporter's transcript from the hearing. Presumably, the trial court would have asked, at that hearing, “counsel, what possible excuse could you have for not responding to the defendant’s repeated requests for the complaint?” The Fourth District Court of Appeal apparently was curious to know the answer to that as well. The court held the lack of the reporter's transcript alone amounted to a forfeiture of the appeal.

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Do You Really Need a Court Reporter? Read This Debate Between Two Appellate Justices

I found this a really interesting case. It is about whether litigants need to have a court reporter at a law-and-motion hearing. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered?

Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in *[Weischadle v. Vo](https://casetext.com/case/weischadle-v-vo?resultsNav=false&jxs=ca&tab=keyword)* (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845) (nonpub. opn.). The majority held the lack of a reporter's transcript at a hearing on a motion to compel arbitration was not fatal. But Justice Chaney penned a forceful dissent. The majority opinion is logical and seems to reach the right result. But Justice Chaney raises important questions whether the majority evaded important procedural safeguards to reach its result.

Given the outcome was a close call, as a practical matter it would be wise to assume a reporter's transcript is necessary for any important law-and-motion hearing, even if testimony will not be offered.

I discuss what happened in *Weischadle* in the rest of the post, along with some comments about judicial admissions, and whether California rules make record preparation needlessly difficult.

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Choose Your Appellate Issues Wisely: Appeal Rejected Because Most Issues Were Forfeited or Improperly Briefed

Specifically, most of the appellants' arguments here were rejected as forfeited. The court also disregarded challenges because the appellants' briefing improperly cited to postjudgment matter in the appellate record in their challenge of the judgment.

The upshot is that great care must be given to the selection of issues on appeal, and whether they are property supported and preserved. Consulting an appellate attorney prior to trial and on appeal may prevent against findings of waiver and forfeiture on appeal.

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No Record, No Problem! Appellant Reverses Alter Ego Judgment Using Settled Statement

I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v. Li (D2d4 May 27, 2021) no. B301004 (non-pub.) personally promised to repay the obligation. And not only is the finding reviewed on the very deferential substantial-evidence standard, but there was not even a court reporter at the trial! Game, set, and match, I would have concluded.

Yet, the defendant got the judgment reversed on appeal. And the defendant showed there are limits to the alter ego doctrine.

The Upshot: In the appropriate case, the Court of Appeal may reverse for lack of substantial evidence supporting all the necessary elements of a claim. And a settled statement can be a viable substitute for a reporter's transcript on appeal. But, still, and although, I would not bet on it.

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Evidence on Appeal: Just Because It Is in the Appellate Record Does Not Mean It Is in the Evidentiary Record

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed.

Also, arguments raised at oral argument don't count.

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Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, and the trial court granted his motion despite its untimeliness.

But, appellant urged, the trial court made no finding of good cause! Without a finding of good cause, and without a stipulation, there can be no extension under the rule!

Appellants often make technical arguments like this on appeal. But appellants often fail to meet their own technical requirements to establish them on appeal. Here, appellant did not appear at the hearing and did not otherwise argue against the moving party's showing of good faith mistake. Appellant also failed to provide a record of what happened at the hearing.

Affirmed.

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Rare Reversal of a $3.4MM Arbitration Award: Overbroad Employee Confidentiality Ruled a De Facto Noncompete and Thus Void

I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. […]

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Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only […]

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