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

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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