Legal News and Appellate Tips

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning to challenge those findings and theories on appeal.

But you don’t have an automatic right to a statement of decision. And very commonly, parties—even their attorneys—are tricked into thinking they have a statement of decision, when really all they have is a tentative decision.

In this clip from episode 74, we discuss why a statement of decision is important, when to request one, how some judges might actually try to trick parties into not requesting a statement of decision, and when you might not want to request one.

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here: https://lnkd.in/ge8d8mYS

The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when challenging an agency action via a writ of administrative mandamus, normally you have to assume the trial court’s ruling is the appealable order. But the Santa Cruz court permitted an appeal much later than that, when the appellant appealed from a statement of decision (which itself is usually not appealable).

The decision contradicts last year’s holding in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43 (but the Supreme Court granted review in Meinhardt).

My comment: It should make you nervous when courts are wishy-washy on appealability. Once the cases suggest an order might be appealable, you need to assume they are definitely appealable, because they’re treated as jurisdictional.

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.

When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late.

But that is not what happened in the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The case involved allegations that a sheriff’s deputy, Kelly Kent, failed to properly act on allegations of sexual misconduct against a correctional officer at the county jail. The Civil Service Commission overruled the sheriff’s demotion, and instead imposed a three-day suspension. The sheriff and the county filed a petition in the Superior Court for administrative mandamus.

After a hearing, the court granted the writ via minute order, ordering the commission to set aside its decision and demote Kent rather than suspend him. That was in November 2021.

But three months later in February 2022, the court entered its statement of decision. Kent appealed from the statement of decision on March 4.

So which was the appealable order? Last year in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, the court held that an order on a writ of mandamus was the appealable order—waiting for a later judgment was too late. (But the Supreme Court granted review in Meinhardt.)

And a statement of decision ordinarily is not an appealable order.

Here is how the Sixth District came down:

“[W]e are satisfied that the trial court's February 1, 2022 statement of decision determined the rights of the parties and disposed of all issues in this case, constituting a final and appealable judgment.

Comment: These cases that conclude that orders that ordinarily are not appealable—like orders sustaining demurrers, orders granting summary judgment, or statements of decision—are appealable, should make you nervous. When the courts are consistent that such orders are not appealable, there is no need to worry about taking an appeal from them: you know you need to wait for a final, appealable order. But when courts hint that they MIGHT be appealable, you need to consider taking an appeal, in an abundance of caution.

Let’s hope the Supreme Court gives some guidance when it takes up the appealability of orders on administrative writs of mandamus in Meinhardt.

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

💡 The rule that contains all appellate rules: Make the Record.

👉#1 Make sure your theories of the case are captured in your pleadings

👉#2 Was key evidence excluded? Preserve the issue by making a proffer.

👉#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

👉#4 Object to Jury Instructions

👉#5 Review the Verdict for Inconsistences

👉#6 Request and Object to the Statement of Decision

👉#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

👉#8 Calculate Appellate Deadlines Correctly

👉#9 Avoid Common Appellate Briefing Mistakes

👉#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

💡 Evergreen Tip: Get a Court Reporter!

When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can request the statement of decision then.”

Not always, as the ARCO learned in Atlantic Richfield Co. v. California Regional Water Quality Control Board (D3 Dec. 5, 2022 no. C093124) 2022 WL 174141444 (nonpub. opn.). The trial court held a hearing that lasted all of 79 minutes. ARCO did not request a statement of decision before submitting. Instead, ARCO assumed it could wait until the trial court issued its written order, when it would have a 10-day period (plus a 5-day extension for mail service under CCP 1013) to request a statement of decision.

Not so. The trial court denied the request as untimely, because under California Rules of Court rule 3.1590(n), “When a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision . . . .”

ARCO then made an argument that was too clever by half—though it was supported by caselaw. ARCO argued that, although the proceedings only lasted 79 minutes, the judge must have spent a lot of time reviewing the voluminous record, and that would have taken more than eight hours.

But the court rejected that. Instead, the court followed In re Marriage of Gray (2002) 103 Cal.App.4th 974, including this quote from Gray explaining how to count to eight hours for purposes of determining whether you have to request a statement of decision at the hearing.

The Upshot: Failing to request a statement of decision can affect the outcome of your appeal. You need to request a statement of decision before the matter is submitted if the proceedings are less than one day or eight hours. How do you count eight hours? Include all time in open court, including recesses—but not lunch and evening recesses.

But why risk it? Just ask for a statement of decision before submitting. Even better: file a written request for a statement of decision at the outset of the proceedings, identifying the key issues on which you want the court to make findings.

Need to get attorney fees after winning your case? The deadline to file your motion is the same as the deadline to appeal, and here’s an example of the strange mysteries of the “triggering document” rules that trigger the 60-day deadline.

After a trust beneficiary won her first appeal, on remand in Karamooz v. Karamooz (D4d3 Nov. 14, 2022) no. G060515, 2022 WL 16918764 (nonpub. opn.) the probate court held a further hearing.

Then the court issued a couple of rulings that are the pieces of the puzzle of the 60-day deadline:

First, in June, the court issued a tentative decision.

Then in July, the court issued a modified statement of decision and order. The clerk served a filed-stamped copy of the modification.

Finally, in August, the respondent served a notice of entry of the tentative—but not the modification.

The appellant filed her fee motion in October—within 60 days after service of the notice of entry of the tentative, but more than 60 days after service of the file-stamped copy of the tentative.

So was the fee motion timely?

Held: The fee motion was timely. Whether the 60-day period started running from service the notice of entry of the tentative or the file-stamped copy of the modification is a trick question: neither one was complete in itself, and so neither was effective to trigger the 60-day deadline.

One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually just a copy-and-paste job of the tentative. So what, then, is the big deal?

The appellant in Marriage of Burger (D4d3 Aug. 18, 2022 No. G060313) 2022 WL 3500197 could tell you. Even though the trial judge had issued a written decision, the appellant lost her appeal because she failed to request a statement of decision.

Nancy Burger was seeking an increased support award from her ex-husband, Robert. Nancy argued that Robert should contribute more money to meet her marital standard of living. Nancy also sought her attorney fees. The trial judge ultimately denied her request, including for attorney fees.

Nancy argued that the trial court failed to consider her request for attorney fees and costs. She pointed out that the trial court's written ruling contained no express analysis of the factors governing need-based attorney fee awards, as required under section 2030.

Unfortunately for Nancy, however, her statutory right to findings was not enough. Robert pointed out that Nancy had failed to request a statement of decision. Absent a statement of decision, the reviewing court will infer any factual findings supported by substantial evidence that are necessary to the result. (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)

Had the abuse-of-discretion standard applied, reversal would have been required. Instead, the Court of Appeal presumed the trial court did consider the factors, even though it made no findings on them. Affirmed.

Note that this result is contrary to Abdelqader v. Abraham (2022) 76 Cal.App.5th 186. Dealing with a similar statute that requires written findings be made (to rebut a presumption of domestic violence under Family Code § 3044).

The same result should have obtained here. Just as with section 3044 at issue in Abdelqader, section 2030 requires that the trial court “shall make findings” on various factors. And just as in Abdelqader, the court here failed to make the required findings. A request for a statement of decision is not required where the statute independently requires findings be made.

But the Burger court did not discuss Abdelqader. There appears to be a split on this issue within the Fourth District.

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.

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.

Victoria discusses with Jeff Lewis and me:
• The unique post-judgment relief available under Fam. Code, § 2122 for fraud, duress, mistake, and financial-disclosure violations;
• Expanded relief on motions for reconsideration; and
• The critical statement of decision process.

Despite these remedies, why do family-law appeals feel like such an uphill climb?
(Answer: because family-court judges have so much discretion even they don’t realize the full extent of it.)

Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative” means a final decision is on the way: If you do not request a final “statement of decision,” you do not get one. And on appeal, the “tentative” has all the force and effect of a postcard.

Both parties in Unified Real Estate Investments, LLC v. Thong (D2d1 Mar. 1, 2022 no. B301162) 2022 WL 602251 (nonpub. opn.) requested a statement of decision. Or at least, they thought they did. But the Court of Appeal held the request was too equivocal (counsel said the statement of decision should “perhaps” cover the issues in the trial brief). The court also held that the requirement to identify the issues to be covered in the statement of decision is not satisfied by general reference to the issues in the trial briefs.

In the post, I outline the steps required to adequately request the statement of decision. I also referenced some of the nasty tricks courts can play on litigants in this procedure.

A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was reversible error.

The appellant in Hale was a mother disputing a visitation order. The court had found the father committed domestic abuse, so under Family Code section 3044, that created a rebuttable presumption that custody was detrimental to the child. The father did not rebut that presumption, yet the court ordered nearly equal-time visitation — in effect, joint custody.

The mother timely requested a statement of decision, but the court said, “I'm not going to issue a statement of decision on this case.”

The Court of Appeal reversed. The trial court’s failure to issue a statement of decision was error. And because the trial court gave no explanation that could support its order, the Court of Appeal found the error was prejudicial.