Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes

A bedrock rule of appellate practice is that an appellant who fails to brief an issue forfeits that issue. That rule applies to appellants. You know, the person challenging the judgment. It does not apply to the respondent—the person defending the judgment. Why? Because a bedrock principle of appellate review is that all intendments and presumptions are given to support the judgment.

But the court in Baltazar v. ACE Parking Mgmt. (D4d1 Oct. 26, 2023 No. D081483) [nonpub. opn.] held the respondent forfeited a basis for upholding the judgment. The respondent was the employee-plaintiff who opposed the employer’s petition to compel arbitration. One of the defenses the employee asserted was that the contract was unconscionable. The trial court refused to compel certain aspects of arbitration, and the employer appealed.

Responding to the employer’s brief, the respondent employee mentions her unconscionability argument only very briefly in a footnote. The opinion does not indicate whether the appellant spent much time on the issue. But the court, in an opinion authored by Justice Do, faults the respondent for not developing the unconscionability defense beyond the single footnote.

Here are the court’s criticisms of the respondent’s cursory reference to unconscionability, followed by this commentator’s reactions:

• “[W]e do not regard this footnoted assertion as a reinvocation of her unconscionability defense.” But a respondent does not need to “reinvoke” a ground supporting a judgment. “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.)
• Citing authority, the court states: "An appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument.” True, an appellant may not bury arguments. But all reasons supporting the judgment are to be inferred.
• The court then acknowledges the rule that it must infer grounds to support the judgment. But then the court says that it “may … disregard conclusory arguments.” But again, this rule applies to appellants, not to respondents. Still, the court assesses respondent with a “briefing deficiency” and concludes the respondent “has forfeited reliance on unconscionability as a basis for affirming the trial court’s order.”

Comment

The opinion includes a lot of analysis of principles of arbitration law, and perhaps that analysis is sound. But the analysis of appellate procedure is not sound. A respondent generally may not stipulate to reverse a judgment (Code Civ. Proc., § 128(a)(8)), and what may not be done directly may not be done indirectly.

The employer also failed to supply an oral record, and in other cases this would be enough to affirm. (E.g., Tim Kowal, “You still need a reporter's transcript even if nothing happened at the hearing,” Oct. 16, 2023 at https://kowallawgroup.com/you-still-need-a-reporters-transcript-even-if-nothing-happened-at-the-hearing/.) At a minimum, if the court believed the trial court did not adequately consider unconscionability, the matter should have been remanded for further proceedings on it.

But it is just wrong to suggest that a respondent can forfeit grounds supporting a judgment that the reviewing court, following basic appellate procedure, must infer.