Legal News and Appellate Tips

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.)

I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment.

That is what happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). The court issued a "Ruling on Trial," and the unsuccessful plaintiff used that for his appellate challenge. But it got him nowhere. It was treated as merely a tentative decision, which cannot be used to impeach a judgment.

(In the post, I relate a strategy I've heard from a trial judge to lure litigants into this trap.)

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens when the judge fails to make findings on material issues in the case?

A helpful illustration of how to set up a strong technical argument on appeal is found in Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.). By raising an omission in the statement of decision in the trial court, the appellant was able to obtain a reversal on appeal.

But caution: While this proved effective on appeal, the result was a remand with directions to the trial judge to supply the missing findings. What are the chances the judge will make findings favorable to the appellant?

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Did you request a statement of decision?

Did you object to the proposed statement of decision?

These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision, or even when a statement of decision has been issued, by failing to object to omissions or defects to give the trial court the opportunity to correct them.

By failing any of the procedural steps in perfecting the record on the statement of decision, the deadline "implied findings" doctrine will be invoked, by which the Court of Appeal will simply infer that the trial court quietly implied any and all findings needed to affirm the judgment. That doctrine almost guarantees affirmance.

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The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The court held the appellant forfeited any challenge to defects in the statement of decision by failing to object in the trial court, and forfeited the arguments that the award was excessive because it was not raised in a motion for new trial.

The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

One of the most effective pieces in winning an appeal is issue selection. Most attorneys know, for example, that "de novo" issues are best on appeal: the Court of Appeal will not pay any deference to a trial court on issues of law.
And most attorneys also know that "abuse of discretion" issues are lousy on appeal. That is because the Court of Appeal will pay great deference to a trial judge's discretionary decisions.
But there is a significant minority of discretionary cases where the trial court so botches its analysis, or misunderstands the law, that the Court of Appeal will pay its orders no deference at all. Instead, on appeal the court will conclude that the trial court failed to exercise discretion. And a failure to exercise discretion is an abuse of discretion.
That is what happened in Southern Cal. School of Theology v. Claremont Graduate Univ. (D2d1 May 3, 2021) no. B302452 (non-pub.). The trial judge thought she did not have authority to apply a "negative multiplier" to reduce block-billed fees. That was incorrect. So back down the case goes.

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in their judgments before exposing them to the crucible of appeal.

Upshot: Do not overlook the statement of decision process at the end of a critical hearing or bench trial. The statement of decision is often the single most important document the Court of Appeal will review. Either party may drastically alter the meaning and effect of that document by making a strategic request for findings under Code of Civil Procedure section 632 and Rules of Court rule 3.1590.

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked […]