Legal News and Appellate Tips

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.

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in *Marriage of Stone* (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.).

The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a tentative decision, held a hearing on the parties’ respective proposed statements of decision, and indicated he would consider modifying certain language. But the judge passed away before entering a final statement of decision or entering a judgment. So the presiding judge declared a mistrial.

On appeal, the appellant-wife argued the mistrial was error and the presiding judge should have entered a judgment on the trial judge’s findings in the intended decision. She had a great case on point, holding that under Code of Civil Procedure section 635, the presiding judge may enter a judgment on an unavailable trial judge’s intended decision. But ultimately the court held it was not close enough, and affirmed.

To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss.

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before.

One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.)

Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it.

CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you to get a statement of decision? (The answer is no, and as the article explains, courts may even actively steer you into waiving the statement of decision.)