How to lose your appeal before it starts
by Jeffrey Lewis
This post is the fifth in an ongoing series about maximizing a party’s chances of prevailing on appeal. Filing a proper and timely notice of appeal is the first important task in the appellate process. Once a notice of appeal is filed but before the appellate briefs are written, a critical task is to designate the record on appeal. That is to say, the parties must decide which documents that were filed in the trial court and/or which reporter’s transcripts should be included as part of the record that the appellate court will receive along with the briefs. If a document or transcript is not included in the appellate record, the appellate justices will not consider it (subject to rare exception). If the appellant omits key documents, the respondent must counter-designate the missing documents or the respondent may be foreclosed from making certain arguments on appeal. In some cases, omitting a document may prove fatal to your appeal. The decision as to which documents to include in the record occurs several months or sometimes years before briefs are written and arguments are honed. It is crucial to give the record designation task thoughtful consideration or the appeal will be over before it starts.
Two unpublished decisions today issued by the Second District Court of Appeal in Los Angeles are instructive as to the importance of the record designation phase of an appeal. First, in an opinion by Presiding Justice Tricia A. Bigelow writing for Division Eight the court emphasized the importance of providing an adequate record of what transpired at trial. In Bova v. Wicks (Jan. 6, 2014 B243064) the plaintiff asserted a claim for nondisclosure in the sale of real property. The defendants lost following a bench trial. Notably, there was no court reporter transcribing the trial. The Los Angeles Superior Court no longer provides court reporters for civil matters and if the parties do not pre-arrange for the presence of a privately paid for reporter, no transcript can be prepared. The defendants appealed the decision and argued that there was no substantial evidence to support the judgment. The appellant did not include a reporter’s transcript on appeal. Nor did the appellant proceed by way of an agreed statement under Rule 8.134 or settled statement under Rule 8.135. Either an agreed statement or settled statement would have provided the appellate court with some summary of the testimony presented at trial as an alternative to a reporter’s transcript. In light of the absence of any record of the testimony provided at trial, it was inevitable that the appeal would result in affirmance of the judgment:
Our review in this case is necessarily limited by the absence of a reporter’s transcript. All of defendants’ arguments concern an alleged lack of substantial evidence to support the trial court’s findings. However, “[w]here no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics in original.)
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Defendants do not argue the trial court’s findings are insufficient to support the judgment, or that the findings are incorrect as a matter of law and the error is apparent on the face of the existing appellate record. They argue only that insufficient evidence supported the findings, which implicates portions of the record we do not have. (Ehrler, supra, 126 Cal.App.3d at p. 154 [“‘on a clerk’s transcript appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings, and that the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment’”].) The documentary evidence defendants have presented is only one portion of the evidence. When determining whether substantial evidence supports a judgment after trial, we are not limited to the evidence cited in the trial court’s statement of decision. Indeed, this court must consider the entire record. (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 49-50.)
Here, the decision to omit any record of the trial was fatal to the appeal. Indeed, the decision to skip the expense of a court reporter at trial may have also proven pivotal as any agreed statement or settled statement may not have captured the evidence necessary to support the arguments on appeal.
In a similar vein, Division Two issued its opinion in Aryeh v. Law Offices of Joseph Daneshrad (Jan. 6, 2014 B248014). Presiding Justice Roger W. Boren authored the opinion on behalf of the court. In Aryeh, an in pro per plaintiff asserted legal malpractice claims against the defendant. The trial court sustained a demurrer, denied leave to amend and denied plaintiff’s motion for reconsideration. On appeal, Aryeh argued that the demurrer should have been overruled and that he should have been given leave to amend. Division Two held that all of Aryeh’s arguments were “scuttled” due to the failure to have an adequate record on appeal:
“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; accord, Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1).” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal. App 4th 1412, 1416.)
Aryeh’s record on appeal did not include a copy of the demurrer sustained by the trial court nor a copy of the defendant’s request for judicial notice granted by the trial court. The appellate court, left with no meaningful record to review for error applied the presumption of correctness cited above and affirmed the judgment against Aryeh. Together, these two decisions underscore the importance of designating the record on appeal.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal. Don’t wing it, win it.