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Evidentiary Record

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

Tim Kowal     May 15, 2023

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 record, there is good news from Guzman v. Front Porch Communities and Services (D2d3 May 5, 2023 No. B314877) 2023 WL 3265696 (nonpub. opn.). The appellant there did have a reporter's transcript. But the appeal involved only a pure question of law. So the lack of an oral record did not affect review.

Front Porch moved to compel this employment dispute to arbitration, but the trial court found the arbitration agreement to be procedurally and substantively unconscionable, and so denied the motion.

Guzman, as respondent on appeal, argued that there was no reporter's transcript, and no statement of decision, so this means the doctrine of implied findings applies and Front Porch forfeited any challenge to the implied findings supporting the denial.

But the Second District, Division Three, concluded that the lack of an oral record did not affect its ability to review the order because Front Porch “contests only the trial court's legal finding that the agreement was substantively unconscionable under Iskanian because it contained an unlawful PAGA waiver.”

As this involved de novo review, and no extrinsic evidence was offered below to interpret the agreement's terms, the lack of a reporter's transcript or a statement of decision changed nothing.

The Court of Appeal went on to conclude that the arbitration agreement did not contain a waiver of PAGA claims, and thus it was not unconscionable. The court reversed with instructions to grant the motion to compel arbitration. (Notably, although the respondent prevailed, the court ruled that each party would bear its own appellate costs.)

The Upshot: If you find yourself without a reporter's transcript, consider whether you have a good appellate issue based on a pure issue of law. But like the respondent did here, you will have to accept all the trial court’s factual findings, including any implied findings.

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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