Appellants must provide a meaningful record or forfeit their claims

 An appellate attorney’s mantra to trial attorneys is to always protect the record.  Our job on appeal is to provide that record to the Court of Appeal.  If we don’t provide a record that shows the trial court committed prejudicial error, we may have forfeited our claims.

In an unpublished opinion in Bonito v. Huntington Condominium Association, #G049338, by the Fourth Appellate District, Division Three, a homeowners’ association appealed from a judgment entered against it for breach of fiduciary duty and negligence claims.  The basis for the claim was that the Association failed to remediate elevated groundwater levels despite obtaining funds in a construction defect lawsuit against the developer.

The appellate court found the Association forfeited all of its challenges except one because the appellant offered little more than bare assertions of trial court error, and failed to address the express basis given by the lower court in its statement of decision.

The Court of Appeal listed several appellate principles that bear repeating here:

  • The appellant’s opening brief must include a summary of the significant facts, not just those favorable to the appellant, and a relevant procedural history, citing California Rules of Court, rule 8.204(1)(2). (Opn., pg. 3.)

  • Although exhibits are “deemed” part of the record on appeal, they are not typically included in the clerk’s transcript nor are they transmitted unless (1) designated as part of the record, or (2) a party makes a timely request to transmit them pursuant to Rules of Court, rules 8.122(a)(3) and 8.224. (Opn., pg. 3, fn. 1.)

  • As a cardinal rule of appellate review, judgments are presumed correct, and therefore, the burden falls on the appellant to prejudicial error.

  • Unless the record shows otherwise, all presumptions favor the trial court and it is presumed matters that could have been presented actually were and the trial court followed the law. (Opn., pg. 7.)

  • The appellant has an affirmative duty to provide relevant portions of the record and, failure to do so, will result in a forfeiture of the point.  (Opn., pg. 7.)

  • Appellate briefs must provide argument and legal authority for each ground.  Failure to do so waives the point. “‘We are not bound to develop appellants’ argument for them . . . The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’”  (Opn., pg. 7.)

  • Appellant’s must address the trial court’s express findings and controlling authority.  If not, the point will be deemed waived.  (Opn., pg. 9.)  “‘One cannot simply say the court erred, and leave it up to the appellate court to figure out why.’”  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Although the Association’s brief included a “Factual Background,” it was incomplete, forcing the Court of Appeal to rely on trial court’s statement of decision for a factual summary.  The appellant failed to even acknowledge the lower court issued a statement of decision and ignored that court’s findings.  The appellant prevailed on one issue – good news for the client – but the court’s decision was to simply remand it to the trial court to prepare a new statement of decision.  Not much of a victory.


New Laws to Help Celebrate 2015!

Effective January 1, 2015, the provisions dealing with a motion for summary adjudication that do not completely dispose of an action, are repealed. A motion that "completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty," is still governed by Code of Civil Procedure section 437c(f)(1) and (2). A big sigh of relief.  I've found these motions to be cumbersome and rarely granted.
The briefing deadlines for motions for new trial (C.C.P., sec. 659a), judgment notwithstanding the verdict (C.C.P., sec. 629), and motions to set aside and vacate the judgment (C.C.P., sec. 663a) are the same. (2014 Cal. Legis. Serv. Ch. 93 (A.B. 1659).)  Whew, what a relief!  



Happy Holidays to One and All!

No matter how I try, I just can't get in the mood to talk about the law.  My mind is elsewhere.  And it's my birthday today.  I'll bet you feel the same.  So, I won't be talking about protecting the record, but instead, want to mention protecting lyour loved ones.  Life is so fragile, but love is so strong.  Odd, isn't it?  Take time off from your busy schedules, put down your briefs and work, and celebrate!  Happy Holidays to everyone.  I will be back in January 2015! 


Achieving Equality in the Courtroom

             The recent events in Ferguson, Cleveland, and New York City have touched a nerve with the public. I think it is more than police violence against blacks. My guess is that a lot of people are protesting the inequity between the classes and the militarization of the police who deal with the lower classes. After all, we don’t see much police brutality against rich people.

           Demonstrating against police tactics is certainly one form of protest, but let me offer another:  serving on a jury. I know most of us hate getting that little postcard or letter in the mail, calling on us to serve on a jury. Our lives are busy. A call from the government to serve our working day on a jury is always going to be an interruption. I have yet to hear anyone say, “Well, let me see, I have nothing better to do. Thought about a matinee or a trip to Disneyland, but jury service sounds like more fun.”  Nope, it ain’t gonna happen.

           Consider this:  the jury system may be the one chance we have for equality in deciding legal disputes. Even though a rich company might have better dressed lawyers and more vivid charts than a little guy, a jury might be able to see through all that and deliver a just result. While judges usually try to be fair, you are dealing with one person who have personal biases. When you go to arbitration as an individual, you may face some prejudice because the arbitrators, who depend on repeat business, may try to appease a corporate party who could use their services over and over again. Juries usually sit for one case involving a party. When that case is over, the jurors are done. No matter how they decide, the jurors are not under the influence of any one party. 

               A judge in Orange County reminds potential jurors of their civic duty:

“Jury trials come at a price.  They’re important.  They’re how our system of law functions. 

People from the community, people just like everyone of you come in, hear a dispute, make a decision, determine what the facts are and apply the law that I give you to the facts, and the case is resolved.

That’s the system that we in this country are devoted to.  It only works when we get a good cross-section of the community to come in and be a jury. It doesn’t work if we take only retired people my age and older. It doesn’t work if we only take students.  It requires that we have corporate executives, and students and retired people and doctors, lawyers, Indian Chiefs, plumbers, electricians, construction workers, people from the community who hear their fellow citizens’ complaints and make a decision.” Judge Andrew P. Banks 

It’s something to think about when you find a notice for jury duty in the mail. I know we would rather be doing other things, but as the judge says, “[T]he only way the system works is when we all step up to the plate and make the sacrifice that serving on a jury requires.  It’s the only duty of your citizenship.”


An Afternoon with Justice Ming Chin

                The Appellate Section of the Orange County Bar Association recently presented an interview with Justice Ming Chin of the California Supreme Court.  Needless to say, I try to attend these interviews, hoping I can pick up a hint or two about how to prepare briefs or be effective at oral argument.  (Even after all of these years, I am capable of learning.) 

                Justice Chin reminded us that the Supreme Court has a heavy work load and a short attention span, presumably because it has to deal with so many cases.  He said, “Take out all of the excess words in your brief.”  Okay, that sounds simple, but believe me, it is hard work.  Longer is easier, but shorter requires a lot of editing.  While you want to take out “excess” words, you certainly don’t want to throw out the important words. 

                He suggested a short introduction in your brief and to put your best foot forward in the first paragraph.  None of this, “This case arises from . . .”  Get right to the point.  I call it the “T.V. Guide” approach.  That first paragraph can set the tone for everything that follows.  It should make the reader want to read the brief and gives the Court a clear idea about what is being sought and why the author should win. 

                Justice Chin suggests a brief with 2-3 issues only.  He says, “The Court is not going to sift through the brief that attaches everything done below.” 

                While Justice Chin finds oral argument important, it might not be important for the reasons you think.  Going into the hearing, a conference memo has already been prepared and circulated.  It is only after the Court has at least four justices who agree that the matter is even set for oral argument, which offers the justices an opportunity to “fine-tune” the opinion.  Get that, not change its mind, but to fine-tune what the justices already decided.  Justice Chin also remarked that on one occasion, the justices concluded “we got it wrong.”  One occasion! 

                Justice Chin also advised attorneys to have a theme for their appeals.  The attorney should be able to put that theme into one sentence.  He also cautioned attorneys to consider what to wear to court.  He mentioned one example of a female attorney who wore a bunch of bangles on her arm that made noise when her hand touched the lectern.  I don’t even like having my purse sitting on the counsel table. 


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