Statements of Decision: The Ideal and the Reality

by T. Peter Pierce, Esq., of Richards, Watson & Gershon

Earlier this year, we held our annual 3rd Advanced Appellate Conference program. One of our speakers, T. Peter Pierce, spoke about Statements of Decision: The Ideal and the Reality at that program, along with the Hon. Kathleen Banke, Associate Justice, CA Court of Appeal, 1st Appellate District, Division One. Peter has spoken at all of our appellate programs, including our 1st and 2nd Annual Advanced Appellate Conferences. And of course Peter will be back for our 4th Annual Advanced Appellate Conference as well. Justice Banke spoke at this year’s program (3rd Annual) and is speaking at our 4th Annual program in SF on January 31st, 2019 as well.

Both Peter and Justice Banke are fantastic speakers, as our attendees note every time they see Peter and Justice Banke speak.

We wanted to share with you some of their discussion, rules and cases they mentioned that you need to know about, and tips regarding Statements of Decision. And be sure to read all the way to the bottom to get to their list of strategies to employ.

A.     Applicable Circumstances for a Statement of Decision
– Trial court MUST issue a tentative decision on “the trial of a question of fact by the court.” (Cal. Rule Court (CRC) 3.1590.)
– Trial court MAY issue Statement of Decision on “the trial of a question of fact by the court.”  (CCP section 632.)  Must issue under certain circumstances (see below).
– Scope of “trial of a question of fact by the court.”  Does it apply to law and motion or other matters?

B.      Timing and Procedure Intertwined
1.  If trial is concluded within one calendar day or less than eight hours spread over more than one day, a party must request a Statement of Decision before the case is submitted for decision. Failure to do so means the loss of any right to a Statement of Decision, although a court may still issue one at its discretion. (CCP 632.)
2.  Regardless of length of trial, the trial court is required to issue a tentative decision. 
a.      If the trial court opts to announce a tentative decision orally, it must announce it in open court in the presence of all parties appearing at trial (CRC 3.1590(a)).  If the trial is concluded within one calendar day, or lasted less than eight hours, a party is not entitled to a written Statement of Decision.  Under CCP section 632, the trial court may issue an oral Statement of Decision.
b.      If the trial court does not announce its tentative decision in open court with all parties present, it must serve all parties with a minute order or written tentative decision.
         3.      Four specified options for a tentative decision are:
  Option 1- Court states that tentative decision is its proposed Statement of Decision (CRC 3.1590(c)(1)).
Issue: Does a party have 10 days after announcement or service of tentative decision to request that the Statement of Decision be modified to include certain issues (CRC 3.1590(d)), or does a party have 15 days under CRC 3.1590(g) to serve and file objections? Probably the latter because CRC 3.1590(c)(1) expressly refers to subdivision (g).
  Option 2- Court states it will prepare a Statement of Decision  (CRC 3.1590(c)(2)).  A party may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues. (CRC 3.1590(d)).  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)  Court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
   Option 3- Court orders a party to prepare a Statement of Decision (CRC 3.1590(c)(3)).  A party not ordered to prepare a Statement of Decision may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues.  (CRC 3.1590(d).)  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)
Option 4- Court directs that the tentative decision will become the Statement of Decision unless within 10 days a party (1) specifies the issues it requests be included in the Statement of Decision, or (2) “makes proposals” not included in the tentative decision (CRC 3.1590(c)(4)).  If a party does so, the court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
         4. The four options in the rule are not exclusive; the rule is phrased in the permissive “may.”  The court could do something else, like send out a written tentative decision without any further direction to the parties.
         Permissive language is consistent with the rule that a Statement of Decision is not required unless the parties request it.  If a Statement of Decision is timely requested and not waived, the trial court must render a Statement of Decision (Karlsen v. Superior Court(2006) 139 Cal.App.4th 1526, 1530-1531).  CCP section 632 requires the trial court to issue a Statement of Decision upon the request of any party if made within 10 days after the court announces a tentative decision (with exception of shorter trial where request must be made before submission of case).
Where the court did not designate either party to prepare a Statement of Decision, by default, and by analogy to California Rules of Court, rule 232(c) [predecessor to Rule 3.1590(c)], the court is required to prepare it.  (In re Marriage of Sellers(2003) 110 Cal.App.4th 1007, 1010–1011.)
        5.     Failure to issue a Statement of Decision in response to a timely request is not per se reversible error.  Instead, the failure is subject to harmless error review.  (F.P. v. Monier (November 27, 2017).)

C.      Elements of Statement of Decision
“A statement of decision explains the factual and legal bases for the trial court’s decision in a nonjury trial.” (Uzyel v. Kadisha(2010) 188 Cal.App.4th 866, 896.)

To comply with a request for a Statement of Decision, a court need only fairly disclose its determinations as to the ultimate facts and material issues in the case. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) When this rule is applied, the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary factsand from legal conclusions. (Metis Development LLC v. Bohacek(2011) 199 Cal.App.4th 748, 758.)

The trial court is not required to respond point by point to the issues posed in a request for Statement of Decision. The court’s Statement of Decisionis sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.  (Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 494-495, 497-500; Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1379–1380.)

A Statement of Decisionneed not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.  (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1124.)

D.     Omissions or Ambiguities in the Proposed Statement of Decision
If a party fails to bring omissions or ambiguities in the proposed Statement of Decision’sfactual findings to the trial court’s attention, that party waives the right to assert on appeal that the Statement of Decision is deficient. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.)  The doctrine of implied findings would then apply if the statement truly contained ambiguities or omissions.

Ordinarily, when the court’s Statement of Decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. (Ermoian v. Desert Hospital(2007) 152 Cal. App. 4th 475, 494-495.)

If the Statement of Decision fails to decide a controverted issue or is ambiguous, any party may bring the omission or ambiguity to the trial court’s attention either before the entry of judgmentor in conjunction with a new trial motion or a motion to vacate the judgment under Code of Civil Procedure section 663. (CCP § 634.)  If an omission or ambiguity is brought to the trial court’s attention, the reviewing court will not infer findings or resolve an ambiguity in favor of the prevailing party on that issue. (CCP § 634.)

If an omission is not brought to the trial court’s attention as provided under the statute, however, the reviewing court will resolve the omission by inferring findings in favor of the prevailing party on that issue.If an ambiguity is not brought to the trial court’s attention as provided under the statute, the reviewing court will resolve the ambiguity by inferring that the trial court decided in favor of the prevailing party on that issue. (Code Civ. Proc., § 634.) To bring an omission or ambiguity to the trial court’s attention for purposes of Code of Civil Procedure section 634, a party must identify the defect with sufficient particularity to allow the court to correct the defect.  (Uzyel v. Kadisha(2010) 188 Cal. App. 4th 866, 896-897; Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135,139 [objections must be filed 15 days after proposed decision].)

In rendering a Statement of Decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts.  The trial court need not discuss each issue listed in a party’s request for a Statement of Decision; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530; Hellman v. La Cumbre Golf & Country Club(1992) 6 Cal.App.4th 1224, 1230; Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 824–827.)  Only when the trial court fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.  If the judgment is otherwise supported, the omission of findings is harmless error unless the evidence is sufficient to sustain a finding in the losing party’s favor which finding would completely undermine findings supporting the judgment. A failure to make findings on an immaterial issue is not reversible error.

E.      Objections to a Proposed Statement of Decision
Any defects in the trial court’s Statement of Decisionmust be brought to the court’s attention through specific objectionsto the statement itself – not through a proposed alternative Statement of Decision. By filing specific objections to the court’s Statement of Decisiona party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous. A proposed alternative Statement of Decisiondoes not serve these functions and does not satisfy the requirements of Code of Civil Procedure section 634 and Rule 3.1590. (Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1380; Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135,139–140; Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 497-500;Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-61.)

F.      Interplay Between Statement of Decision and Judgment
A court may amend its Statement of Decisionafter it receives objections from affected parties. If judgment has not yet been entered, the trial court has inherent power to amend its Statement of Decision to award prejudgment interest. Even after a court has issued a written decision, the court retains authority to change its findings of fact or conclusions of law until judgment is entered. Until a judgment is entered, a Statement of Decision is not effectual for any purpose (Code Civ. Proc., § 664).  A court sitting as a trier of fact may at any time before entry of judgment amend or change its findings of fact.  (Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135, 141.)

A Statement or Decision or memorandum of decision is not appealable. Courts embody their final rulings not in Statements of Decision but in orders or judgments. Reviewing courts have discretion to treat Statements of Decision as appealable when they must, as when a Statement of Decision is signed and filed and does, in fact, constitute the court’s final decision on the merits. But a Statement of Decision is not treated as appealable when a formal order or judgment follows. (Pangilinan v. Palisoc(2014) 227 Cal.App.4th 765, 769; Alan v. American Honda Motor Co., Inc.(2007) 40 Cal.4th 894, 901.)

G.     Strategies Involving Statement of Decision
–        If the tentative decision is in your favor, do not request a Statement of Decision.
–        If the tentative decision is against you, timely request a Statement of Decision.  Possible exception when de novo standard of review.
–        If you lose on the tentative, identify alternative theories that the trial court did not decide, and request an express statement that the trial court did not reach the issues encompassed within those theories.
–        Be judicious in objecting to Statement of Decision.  Focus on broader issues and not on every minor point.
–        If you are the prevailing party, and the losing party objects to the Statement of Decision, think carefully about whether the objections will allow the trial court to clear up ambiguities and omissions, thereby bolstering the judgment in your favor.
–        If you are required to request a Statement of Decision before the case is submitted, make an educated guess as to whether you will be the prevailing party.

 

 

Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.

 

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Defeating Motions for Summary Judgment: The Reply Brief

Below is a list of suggestions for drafting your Motion for Summary Judgement Reply Brief. It was written by James Allen, Retired Assistant County Attorney of Miami Dade County, and James Robinson of White & Case LLP who have both taught at several of our prior programs!

Remember – standards and burdens of proof.

  • The non-moving party is required to designate facts which demonstrate a genuine issue for trial and must avoid conclusory allegations unsupported by factual material.
  • The non-moving party need only prove a material factual dispute.
  • All reasonable inferences must be drawn in favor of the non-moving party.

Structure of brief.

  • Introduction – what is your theme?
  • Factual background
  • Argument
  • Sections (and section headings)
  • Conclusion

What are common defenses/themes when opposing motions for summary judgment?

  • Attack the facts.
  • Attack the law.
  • DO NOT focus an inordinate amount of space (or case citations) on the standard of proof or that reasonable inferences are drawn in your favor.

Strategies for contesting/disputing facts.

  • Choose your battles – do not contest EVERYTHING! This is a matter of credibility.
  • You must be specific in contesting/disputing facts – cite to specific language (with page numbers) and testimony. Include quotes. Emphasize important pieces of evidence.
  • If there are no disputed material facts on any issue and you agree that the issue is a matter of law, consider filing a cross-motion and a stipulated set of facts.

Addressing legal arguments made by moving party.

  • Don’t be bound to the organizational structure of the moving party. Example: If they have hidden a glaring weakness in the middle or end of their brief, bring that issue to the forefront in your opposition.
  • But don’t ignore the motion altogether – a good response brief must “respond” to the moving papers.
  • Address all arguments – failure to address can be viewed as a concession.
  • Distinguish all cases cited in the motion.   Where there are many cases, distinguish the cases in large groups.
  • Don’t submit boilerplate objections—tailor your arguments to your facts.

Using legal authority (applies also to motions).

  • The preferred priority of cases in support of our arguments:
    • First priority –cases in which trial court did what our opponent is requesting, and the appellate court reverses.
    • Second priority (OK, but not as good) – cases in which the trial court did what we request, and the appellate court affirms.
    • Third priority (not good; but we are a bit desperate) – only if none of the first two categories are available, cases in which the court cites a correct legal principle, but the court rules against our position.

A word about reply briefs.

  • Structure:
    • We demonstrate/established X.
    • They did not controvert/challenge/dispute, but only argued Y.
    • This is incorrect because …
    • Their cases do not change the result (and distinguish).
  • As a general rule, DO NOT cite the same cases from your motion – a reply brief should “reply” to the response

Introduction to Oral Argument

argument

We wanted to share with you some tips and advice from speakers at prior programs that we know you will find helpful! Check out this list of Oral Argument tips, created by Andrew Livingston, who has spoken at many of our Superior Court Boot Camps (and is speaking at our upcoming one this fall, 2018).

Let us know what you think!


Objectives

  • Learn how to prepare written materials for oral argument
  • Learn how to prepare for the spoken part of oral argument
  • Learn orienting devices to help your audience understand where you’re going.
    Learn how to deal with questions:

    • Cold benches, i.e., no questions
    • Hot benches, i.e., lots of questions
    • Answering questions
    • Moving on after a question
    • When to concede a point versus standing your ground
    • What to do when you don’t know the answer
  • Learn effective rebuttal

Preparing for the Argument

  • You should be developing your outline as you develop your knowledge of the facts and the law.
  • Your outline will probably start off very long; use the outlining process to refine your points over the course of multiple drafts.
  • Your goal should be to get your outline down to a single page, with single-sentence bullet points which you can reference during argument.
  • Consider coming to argument with a folder with:
    • your one-pager on one side; and
    • more detailed notes on the other side
  • Your folder is your security blanket; if you’re prepared, you might not need it at all.
  • The order of your argument can be just as important as the substance.
  • Think about placement, i.e., where within the argument you want to emphasize good facts and law, and where you want to [bury] bad facts and law.
  • Is there a bad fact or a bad case you want to get out in your opening so you can distinguish or neutralize?
  • Set aside dedicated time to practice your argument by yourself.
  • The goal is to get to the point where you won’t need to read from your outline.
  • Depending on time, resources, and the argument, you may wish to have a moot court session
  • If you do a moot argument, make sure the participants are:
    • familiar enough with the case to ask the right questions; and
    • can offer constructive feedback on your argument style
  • If this is your first argument—ever, or before this court—try to visit the court beforehand and watch another argument
  • Learn the layout, e.g., will you use a lectern or a table? Where is the countdown clock? Can you raise or lower the lectern? Where’s the water?
  • What are the judges’ names and where will they be seated?
  • How has the judge(s) ruled on this issue before?

The Argument

  • The first thing you need to know about speaking is that listening is at least as important.
  • The court will let you know what it’s interested in hearing, which often is not what you’re interested in saying.
  • If you’re prepared, you’ll be ready to listen to the court and adjust your argument accordingly.
  • Starting off with a concise, precise roadmap will help set up the audience’s expectations
  • Quickly state the relief and the reasons why the relief should be granted.
  • Use signposts in your argument to orient the audience
  • Let the court know when you’re moving to another point, and use that opportunity to once again map out your argument for the court.
  • Regarding plaintiff’s request for injunctive relief, the court should deny the motion because….
  • Make sure you understand questions asked, and clarify if necessary
  • TAKE YOUR TIME before
    • This is one of the hardest skills to learn in oral argument
    • Pause and think before answering
  • Resist the urge to fill the silence by saying the first (possibly incorrect) thing that pops into your head

Oral Argument Tips by Karen Kimmey

argument

Here’s another “How to” list of tips, from the do’s to the don’ts, from one of our favorite (and most loved by attendees) speakers at prior CA Superior Court Boot Camps –  we know you will find these helpful! Let us know what you think!

And don’t miss our upcoming 13th Annual Superior Court Boot Camp set for October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco.


Oral Argument Tips, by Karen Kimmey of Farella Braun + Martel, and one of our favorite Superior Court Judges in Los Angeles.

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.