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Oral Argument

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

Tim Kowal     December 8, 2021

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 happened in the real property dispute in Chiasson v. Orlemann (D2d3 Dec. 3, 2021) 2021 WL 5755051 (no. B303080) (nonpub. opn.). Plaintiff alleged he had an oral argument to buy a house from the defendant. They would have put it in writing, you see, but the plaintiff wasn't able to get the loan himself so it was left in the defendant's name. The trial court rejected the plaintiff's theory.

The court issued a "Ruling on Trial." The Ruling on Trial reasoned that the plaintiff was essentially arguing for a resulting trust, and it was barred by the statute of frauds.

On appeal, the plaintiff argued that a resulting trust is not subject to the statute of frauds.

No matter, the Court of Appeal held. No one requested a statement of decision, and there is no reason to think the “Ruling on Trial” was meant as a statement of decision. "The ruling, therefore, is merely a tentative decision, which may not be used to impeach the judgment. (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 551–552 [where no party requested a statement of decision, the court's “written opinion and ruling was not a statement of decision but merely a tentative decision”]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw) [a tentative decision cannot be used to impeach a judgment on appeal].)"

A recent published case observed that the implied findings doctrine applies wherever a statement of decision was available but not requested. In Gamboa v. Northeast Community Clinic (D2d7 Nov. 30, 2021) ___ Cal.Rptr.3d (2021 WL 5575536, no. B304833), the trial court denied a motion to compel arbitration. Affirming, the Court of Appeal concluded the trial court impliedly found there was no agreement to arbitrate, quoting Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 at page 842: “Because a statement of decision was available but not requested, we apply the doctrine of implied findings and presume the court made all factual findings necessary to support its order—to the extent substantial evidence supports such findings.”].)

And in still another recent published case of BMC Promise Way, LLC v. County of San Benito (D6 Nov. 1, 2021) ___ Cal.Rptr.3d ___ (2021 WL 5631558, no. H046707), a similar thing happened. "Plaintiff refers repeatedly in its opening brief to an “oral statement of decision.” But a statement of decision must be requested (Code Civ. Proc., § 632), and no party requested one here. As such, we review the judgment without regard to oral statements made by the trial court at the hearing. (Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 825.)"

The Chiasson court went on to explain that, "to the extent the court erroneously applied the statute of frauds in its ruling, we must presume it corrected the error before entering the final judgment. (Shaw, at p. 268.) Moreover, under the doctrine of implied findings, we must also presume the court made the necessary factual findings to reject the Orlemanns’ resulting trust defense. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140 [where the parties did not request a statement of decision, the reviewing court “must assume that the trial court made whatever findings are necessary to sustain the judgment”].)"

I once heard a trial judge remark that, when he issues his initial tentative ruling after a trial, he labels it a "Final Statement of Decision." Under California Rules of Court 3.1590(a), the court "must announce its tentative decision," and subdivision (b) states that the tentative decision is not binding. So it doesn't matter that it is called a "Final Statement of Decision" because by operation of the rules it is not binding. But by calling it a "Final Statement of Decision," the judge reasoned that some litigants may be dissuaded from requesting a formal statement of decision, and thus insulate the judgment from challenge on appeal.

Do not fall into this trap. If you want to challenge a judgment after a bench trial, request a statement of decision. Do not assume you may challenge the minute order or tentative ruling or "ruling on trial" or whatever else the judge might issue. If no one has formally requested a statement of decision, chances are there is no statement of decision. And that means you are up against the implied findings doctrine, which basically means your changes of appellate success are in the statistically undetectable region.

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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