Kowal Law Group Logo

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"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

“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

"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

"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

"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

"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.)

"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

"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

"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

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

— H.L. Mencken

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

Leviticus

Copyright © 2024 Kowal Law Group
menuchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram