Lack of record leads affirmance by memorandum decision

Tim Kowal May 22, 2023

Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question. (People v. Garcia (2002) 97 Cal.App.4th 847, 853.)

In Young v. Longstaff (D6 May 12, 2023 No. H050172) 2023 WL 3408533 (nonpub. opn.), the could determined that the absence of an oral record supported an affirmance via a memorandum opinion rather than a full legal essay. Young challenged the application of the statute of limitations, but did not include an oral record of the trial, involving four witnesses concerning Young’s acknowledgment of the debt and promise to pay it back. That all bore on the date the statute ran.

The court concluded: “Because we cannot determine any error based on the record provided to us, we must presume that the trial court's decisions were correct and affirm the judgment.”

In such a case, no further examination would be fruitful. As People v. Garcia recognized, “the individually prepared legal essay, the product of countless hours of precious judicial time, is an impossible procedure for handling today's monstrous caseload, and in the majority of appeals it serves no useful social purpose.”

Takeaway: If you are the respondent and the appellant failed to supply an oral record, suggest that the court affirm by memorandum opinion under California Standards of Judicial Administration, Title 8, Standard 8.1 and People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.

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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"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

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— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

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— Hon. Sir Owen Dixon, Chief Justice of Australia

Lack of record leads affirmance by memorandum decision

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

"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

"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

"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

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

"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

"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.)

"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