A Request for a Statement of Decision That Failed to Identify the Issues Held Inadequate

Whether you win or lose a bench trial, by the time you’ve finished you want the judge to give a written explanation for the decision. And the rules say you are entitled to one. But beware: The rule only says you are entitled to a “tentative” decision. Do not be misled into thinking that “tentative” means a final decision is on the way: If you do not request a final “statement of decision,” you do not get one. And on appeal, the “tentative” has all the force and effect of a postcard.

Both parties in Unified Real Estate Investments, LLC v. Thong (D2d1 Mar. 1, 2022 no. B301162) 2022 WL 602251 (nonpub. opn.) wanted a statement of decision. The case was a dispute between shareholders of a restaurant business and the restaurant’s landlord. The trial ended with the shareholders defensing the claims.

Both sides requested a statement of decision. Or at least, they thought they did. After closing argument, the defendants’ counsel orally requested “a statement of decision under CCP 632 and a finding of facts, particularly perhaps to address the issues that were raised in the two trial briefs that I filed.” Then the plaintiff’s counsel said, “Since we’re doing a statement of decision,” proposed some procedural items to be covered, and then offered, “we'd be happy to prepare a closing brief or proposed statement of decision if the Court elects.” The court declined further briefing.

The trial court then gave its oral tentative ruling in favor of the defendants. The trial court also directed the parties to make a written request for a statement of decision if they wanted one. Neither party did, and the court entered judgment without ever issuing a final written statement of decision.

The plaintiff appealed, arguing the lack of a statement of decision was error. But the Court of Appeal rejected this argument, finding neither party sufficiently requested a statement of decision.

The Correct Procedure for Requesting a Statement of Decision

The court provided this helpful statement of the applicable law for requesting a statement of decision:

“ “[U]pon the request of any party appearing at the trial,” the trial court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” (See Code Civ. Proc., § 632.) Subject to an exception not applicable here, a request for a statement of decision “must be made within 10 days after the court announces a tentative decision.” (See ibid.) “After a party has requested the statement, any party may make proposals as to the content of the statement of decision.” (Ibid.)

“ “The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.” (Code Civ. Proc., § 632.) A party's failure to specify that the statement of decision should address a particular issue “waive[s the] right to object to the failure of the statement of decision to do so.” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292 (City of Coachella).) “[A] general, nonspecific request for a statement of decision does not operate to compel a statement of decision as to all material, controverted issues.” (Id. at pp. 1292–1293; accord, Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1394.)“

The Parties’ Request for a Statement of Decision Was Inadequate Because the Request Did Not Expressly Identify the Material Controverted Issues the Trial Court Was Asked to Decide

the Court of Appeal concluded the parties requests for a statement of decision were inadequate for two reasons. First, the requests were equivocal. Second, the requests did not specify the material controverted issues court was being asked to decide.

The court drew attention to the fact that the defendants four all request for a statement of decision was equivocal. The request was for “a statement of decision under CCP 632 and a finding of facts, particularly perhaps to address the issues that were raised in the two trial briefs that I filed.” (Italics added.) The court seized on the word “perhaps.” and the plaintiffs attorney did not refer to any issues to be decided, whether directly or by reference to trial briefs.

The court reasoned that, given this ambiguity, it was unsurprising that the trial court had asked for a written request specifying the issues to be covered in the statement of decision.

Oral Requests for a Statement of Decision Are Permissible, But They Still Must Identify the Issues to Be Decided

The court acknowledged that an oral request for a Statement of Decision may be adequate. “Be that as it may, a valid request for a statement of decision, whether written or oral, must specify the issues to be addressed. That specificity was absent here.”

The Upshot

Follow these steps—and watch out for these traps—to get a statement of decision:

1. if the trial is completed in under a day, you must—must— orally request a statement of decision before submitting the matter.
2. Request a statement of decision in writing within 10 days of the judges tentative decision. (Cal. Rules of Ct., rule 3.1590(d).) When the judge issues a tentative decision, do not be misled into thinking this is your statement of decision. Also do not be misled into thinking the statement of decision will be forthcoming. (Judges can play nasty tricks with this.)
3. Your request for a statement of decision must identify all of the principal controverted issues you want the judge to decide. This means only ultimate facts, not evidentiary facts. If you overdo it with a blunderbuss request, the court may be authorized to simply ignore your request entirely.
4. Your request for a statement of decision also must include proposed findings on each of the issues. Again, if you omit this, the court may be authorized to ignore your request entirely.
5. Once you receive the court's final statement of decision, file written objections concerning any omissions or legal errors in the statement. If the Court of Appeal concludes you did not give the trial court sufficient opportunity to correct the errors, any defects in the statement of decision may be deemed waived.

And here are some belt-and-suspenders measures to consider:

1. Take care when preparing your statement of controverted issues at the outset of trial period this is your first draft of the request for statement of decision.
2. Submit a written request for a statement of decision at the outset of trial, and include the issues in your statement of controverted issues. While this is not strictly necessary, it cannot hurt.

If a statement of decision will be important in your case, it may be worth considering retaining an appellate specialist to fuss over these problems so that you can focus on winning your trial.