Failing to request a statement of decision. Misunderstanding what “substantial evidence” means. Preparing an incomplete appellate record. Yes, these mistakes will lose you your appeal. But they can also get you sanctioned. The appellant’s counsel in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.) got sanctioned nearly $50,000 for pursuing a frivolous appeal. (Disclosure: the author was primary counsel on this appeal.)
The plaintiff lost a bench trial. The court issued a tentative decision, but the plaintiff did not request a statement of decision. That was mistake #1.
On appeal, the plaintiff argued that the trial court failed to make required findings. But absent a request for a statement of decision, the trial court is not required to make any findings—instead, all findings supporting the judgment are implied under the implied-findings doctrine. That was mistake #2.
The plaintiff then argued that it offered substantial evidence to support a judgment in its favor. But that’s not how substantial evidence works. The plaintiff would have had to meet the impossibly-high “finding compelled as a matter of law” standard. That was mistake #3.
The plaintiff wasn’t done. The plaintiff also identified trial exhibits to be included in the Clerk's Transcript. But the clerk had returned custody of the trial exhibits to the parties. They were not included in the Clerk's Transcript. And under California Rules of Court, rule 8.224(a)(1), in this circumstance the appellant needs to send up the original trial exhibits to the Court of Appeal. The plaintiff failed to do that. And it is the appellant’s burden to furnish the record on appeal. Mistake #4.
The plaintiff also failed to cite the evidence supporting the judgment, a violation of the rules when challenging the judgment for lack of substantial evidence. Mistake #5.
Putting all these errors of appellate procedure together, the court concluded they made the “degree of objective frivolousness … very high.” And the plaintiff was made actually aware of these defects by the respondent’s brief and motion for sanctions.
The court did not dismiss the frivolous appeal, but it did award sanctions against the plaintiff in the amount of $49,243. One of the reasons the court awarded sanctions was “to deter conduct of this nature in the future,” noting that “If counsel is not aware of those principles and rules [of appellate review and procedure], they should be learned before an appeal is taken.”
Takeaway: While the number and severity of appellate-procedure missteps here are uncommon, finding one, two, or even several material defects in an appeal is very common. Consider consulting with an appellate specialist on your next appeal.
"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."
— Plato (427-347 B.C.)
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
— James Madison, Federalist 62
"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."
— Sir Thomas More in Robert Bolt's A Man for All Seasons
"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."
— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334
"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."
—T.H. White, The Once and Future King
"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."
— Will Durant
"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."
— Hon. Sir Owen Dixon, Chief Justice of Australia
Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.
"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."
— Roscoe Pound, An Introduction to the Philosophy of Law
"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."
— Rubin v. Green (1993) 4 Cal.4th 1187