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Even when fact-finding is purely document-based, appellate court still defers to the trial judge

Tim Kowal     March 14, 2024

A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian woman’s dispute to arbitration. Each side has facts in its favor, and Michael Shipley has a nice summary of some of the main points, but the point is that the facts were in sharp dispute, and the trial court came down on the side of the homeowner and found no valid agreement to arbitrate.

On appeal, the solar company argued that when the trial court's findings are based solely on written evidence, review is de novo. There is some authority cited for this, which the court refers to as the "Patterson/Milazo rule,” but the court rejects them as inapt, standing instead for the plain vanilla rule that interpretation of a contract without recourse to extrinsic evidence is a question of law. But here, the enforceability of the arbitration clause depended on extrinsic evidence.

In fact, the "Patterson/Milazo rule" suggesting that law-and-motion-derived facts may be reviewed de novo is contrary to Supreme Court authority. “Our Supreme Court has held that a trial court's judgment or order receives the same deference whether it is based on declarations and written evidence or based on oral testimony. (People v. Vivar (2021) 11 Cal.5th 510, 528, fn. 7; Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn. 3; Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 ["Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations" (fn. omitted)]; [additional citations omitted].)”

Given the contrary Supreme Court authority and the published Jones opinion’s repudiation of appellants’ interpretation of the "Patterson/Milazo rule,” I would not suggest taking the position that there is a conflict of authority on this point. Normally, a trial court may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of a conflict. But consider whether there remains a plausible argument that facts derived from paper declarations are worthy of less dignity than facts derived by other means.

And because the solar company had the burden to prove an enforceable arbitration agreement, on appeal it had to meet the impossibly high “findings compelled as a matter of law” standard, akin to the JNOV standard. “[W]hen the decision is based on a failure of a party to meet its burden of proof, it is "misleading" to say that the review is for substantial evidence. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 [citation]..) Instead, the standard of review is the erroneous as a matter of law standard. [Citation.] Here, the trial court expressly held that appellants failed to meet their burden by a preponderance of the evidence. Therefore, the appropriate standard of review is the erroneous as a matter of law standard.”

That standard is as grim as it sounds. As the court goes on: “Some courts maintain that if "' "the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in [its] favor." '" [Citations.] Appellants have not achieved the "almost impossible" in this case.”

So the octogenarian plaintiff keeps her claims out of arbitration.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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