The important appellate tip in the denial-of-coverage insurance case of Saydman v. Aegis Sec. Ins. Co. (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.) is: get a court reporter. Even when the hearing is on a routine motion for attorneys’ fees involving no testimony, expect the appellate court to affirm if you don’t have a record of the oral proceedings.
The plaintiffs won a modest $25,000 at trial against the insurer, and then moved for attorneys’ fees. Plaintiffs claimed almost $400,000 in fees and costs, but were awarded less than $15,000.
In denial-of-coverage cases, under Brandt v. Superior Court (1985) 37 Cal.3d 813, attorneys’ fees are not merely costs but part of the damages. That means they are part of the underlying judgment. Normally, you have to appeal from both the judgment and the subsequent fee award separately, or else risk your appeal becoming untimely. But when the fees are part of the damages, the plaintiffs were correct in waiting until the fees were decided before appealing.
But plaintiffs failed to get a reporter’s transcript of the hearing on the fee motion. They said that their arguments were merely legal in nature. And besides, there appears to have been no testimony at the hearing on the fee motion, and it is unclear whether any of the trial testimony was relevant to the fee issues.
No matter. If it is at least remotely possible that anything said at an unreported hearing might support the judgment, the reviewing court must presume that it absolutely happened. Here is the authority to clip-and-save:
"When 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 (Fain).)
Takeaway: Get a court reporter. If not, and truly nothing important happened at the hearing, you can use a settled statement to say so. But whatever you do in your appeal, don’t fail to consider the oral record.
