Statements of Decision

The appellate court that overruled a supreme court: Part 2 with John Sylvester

Last updated on June 11, 2024 by Tim Kowal

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic...Read More >>

The appellate court that overruled a supreme court: Part 1 with John Sylvester

Last updated on June 4, 2024 by Tim Kowal

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don’t get an...Read More >>

Top 10 Tips for Family Law Appeals

Last updated on April 9, 2024 by Tim Kowal

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include: 👉 Know your appealable issues—appeal now, or lose it forever! 👉 Request a statement of decision. Don’t need to, you say?...Read More >>

CEB has my article, “Lack of statement of decision leads to reversal”

Last updated on December 22, 2023 by Tim Kowal

CEB DailyNews has published my article, “Lack of statement of decision leads to reversal.” The article is about the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.], where the appellant correctly followed the two-step process for a statement of decision. When the trial court still...Read More >>

Failing to log the length of trial leads to appellate loss

Last updated on November 2, 2023 by Tim Kowal

The employee-appellant in Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.] challenged the trial court’s refusal to issue a statement of decision. The losing party has a right to a statement of decision, but only if timely requested. What is the deadline? There are two: 10 days, normally, but for...Read More >>

Lack of statement of decision leads to reversal

Last updated on October 25, 2023 by Tim Kowal

One advantage to a bench trial is that you are entitled to a statement of decision. This can be better than a jury verdict because a statement of decision includes findings on all material issues. The cross-defendant in the development dispute in Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550)...Read More >>

Statements of Decision: The what, why, how…and when judges trick you into waiving them!

Last updated on June 22, 2023 by Tim Kowal

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning...Read More >>

When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused (published at CEB)

Last updated on June 15, 2023 by Tim Kowal

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here. The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when...Read More >>

No reporter's transcript, no problem: denial of motion to compel arbitration still reversed on appeal

Last updated on May 15, 2023 by Tim Kowal

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.) On the side of relaxing the requirement of having an oral...Read More >>

When do you have to request a statement of decision?

Last updated on February 9, 2023 by Tim Kowal

When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can...Read More >>

Failure to Request a Statement of Decision Changed the Outcome of This Appeal

Last updated on August 24, 2022 by Tim Kowal

One of the first pieces of advice an appellate attorney will give a trial attorney is: Don’t forget to request a statement of decision. But this advice puzzles experienced trial attorneys, who know that the trial judge, after a bench trial, is already required—without request—to give tentative decisions. And a statement of decision is usually...Read More >>

Failure to Make Required Findings Held Reversible Per Se

Last updated on April 5, 2022 by Tim Kowal

Trial courts are required to make findings after certain proceedings. So is a court’s failure to make findings reversible error? A few years ago, the California Supreme Court answered: No. (F.P. v. Monier (2017) 3 Cal.5th 1099 [failure to issue statement of decision not reversible per se].) Instead, to be reversible, the trial court’s failure...Read More >>

Victoria Fuller on Family Law Appeals: Episode 27 of the California Appellate Law Podcast

Last updated on March 22, 2022 by Tim Kowal

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment. Walking practitioners through various procedural issues in...Read More >>

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

Last updated on March 10, 2022 by Tim Kowal

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”...Read More >>

Family Law Judgment Reversed for Failure to Provide a Statement of Decision

Last updated on February 22, 2022 by Tim Kowal

A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was...Read More >>

Judge’s Death After Deciding Case But Before Issuing a Statement of Decision Results in Mistrial

Last updated on January 25, 2022 by Tim Kowal

What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in Marriage of Stone (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.). The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a...Read More >>

Where the Statement of Decision Procedure Can Fail You

Last updated on December 29, 2021 by Tim Kowal

To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss. Watch the clip here. This clip is from the California Appellate Law Podcast episode 18,...Read More >>

So You Reversed a Statement of Decision – Now What?

Last updated on December 23, 2021 by Tim Kowal

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal...Read More >>

Don't Fall Into the "No Statement of Decision" Trap

Last updated on December 20, 2021 by Tim Kowal

CEB published my article, “Don't Fall Into the "No Statement of Decision" Trap,” which cautions trial attorneys to make sure to formally request a statement of decision. A statement of decision can be a powerful base from which to launch an attack on a judgment, so do you think courts make it easy for you...Read More >>

If No One Requested a Statement of Decision, Then There Is No Statement of Decision

Last updated on December 8, 2021 by Tim Kowal

I see a lot of people make this mistake, not just attorneys but even judges. Remember: If no one asked for a statement of decision, then whatever reasons the court gave for its judgment do not amount to a "statement of decision," and thus may not be used to impeach the judgment. That is what...Read More >>

Order Denying Arbitration Reversed, Trial Court Must Decide Existence of Arbitration Agreement First — But a Strong Dissent Disagrees

Last updated on November 3, 2021 by Tim Kowal

This will surprise appellate attorneys. The Court of Appeal in Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.) recently reversed an order denying a motion to compel arbitration — but not because the trial court did not cite valid grounds to deny the motion. Instead, the majority reversed because the...Read More >>

Judgment Reversed Because Statement of Decision Omitted Material Issues

Last updated on October 28, 2021 by Tim Kowal

One of the nice things about bench trials is that there is no need for jury instructions and verdict forms, which can be very laborious to prepare. In a bench trial, instead of a verdict turned in by the jury, the parties get a statement of decision turned in by the judge. But what happens...Read More >>

Statement of Decision Missteps in Three Recent Appeals

Last updated on July 28, 2021 by Tim Kowal

Did you request a statement of decision? Did you object to the proposed statement of decision? These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision,...Read More >>

Appellate Court Holds Respondent Forfeited Issues and Failed to Establish Implied Findings

Last updated on March 23, 2021 by Tim Kowal

In another cautionary tale for respondents on appeal, the Second District in this appeal of an order denying arbitration holds the trial court erred in finding an arbitration agreement unenforceable. The opinion in Alvarez v. Altamed Health Servs. (D2d8 Feb. 4, 2021) No. B305155 (published) suggests a couple ways respondents might try to shore up potential defects in...Read More >>

Court Abused Its Discretion by Denying $4M Sanctions Request for Abusive Discovery

Last updated on January 14, 2021 by Tim Kowal

The Discovery Act provides for mandatory sanctions for discovery abuses unless the court finds the offending party acted with substantial justification or the sanction would be "unjust." Plaintiffs in Kwan Software Eng'g, Inc. v. Hennings (D6 Dec. 2, 2020) No. H042715, a high-stakes (the complaint sought $255 million) and multi-party Silicon Valley litigation over "cyber-squatting," gave false deposition testimony,...Read More >>

Spousal Support Order Reversed on Appeal for Lack of Explicit Findings

Last updated on January 6, 2021 by Tim Kowal

In this dissolution proceeding in Nevai v. Klemunes (In re Marriage of Nevai) (D3 Dec. 29, 2020) No. C086584, wife, who had quit her engineering career to raise the couple's child, asked for monthly permanent support of $10,000 from husband, who earned between $16,000 and $18,000 per month. Wife also asked that husband be ordered to pay...Read More >>

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"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

"A judge is a law student who grades his own papers."

— H.L. Mencken

"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

"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

“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

"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

"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.)

"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

"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

"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

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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"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

"A judge is a law student who grades his own papers." — H.L. Mencken

"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

"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

"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

"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.)

"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