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Oral record on appeal was required to review the validity of a trustee notice to beneficiaries

Tim Kowal     April 3, 2023

We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help (as I suggested in a recent presentation) would be for the appellate courts not to insist on an oral record where it’s pretty clearly unnecessary.

I wonder if that might be the case in Kendrick v. Wyckoff (D1d3 Mar. 21, 2023 No. A165494) 2023 WL 2592029 (nonpub. opn.). Wyckoff is a trust beneficiary, and he wanted to challenge the validity of a trust amendment. He claimed the trustee’s notice to beneficiaries under Probate Code 16061.7 was invalid. That sort of thing is normally determined just by looking at the documents.

But the Court of Appeal said it would not review the issue unless it had an oral record of the hearing. True, there was an evidentiary hearing set. But the trial court’s minutes do not indicate whether any testimony was taken. Nor does the opinion indicate what sort of testimony might bear on the issue.

Still, no oral record meant the order had to be affirmed: “Without a record of any evidence received” at the hearing, “we must presume the evidence supports the trial court's findings and its resulting orders were appropriate based on those findings.”


The requirement that an oral record be supplied already imposes difficult technical and administrative burdens on less well-heeled litigants, but especially so given the court-reporter shortage. If the respondent indicates in its brief that, yes indeed, evidence was taken at the hearing, that is one thing. But where no party indicates there was any oral evidence taken, the appellate courts should stop letting their imaginations run away with them.

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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