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Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Tim Kowal     December 31, 2020

Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only evidence supporting reversal rather than supplying the evidence to support the judgment.

In the real estate nondisclosure case in Newstart Real Estate Inv. v. Huang (D2d8 Dec. 18, 2020) No. B289513, the trial court rejected plaintiff's alter-ego claim. On appeal, plaintiff urged that the alleged alter ego failed to keep corporate formalities. The Second District, Division Eight held: "Plaintiff has waived this contention by discussing only the evidence favorable to its position. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 [an appellant must discuss all significant facts, and the failure to state all of the evidence fairly in its brief waives the alleged error].)"

(It is worse than this, really, because when a plaintiff loses a claim for failing to meet its burden of persuasion, the matter is at an end, and the finding is beyond appellate review: “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.))

Plaintiff-appellant also argued the fees awarded him were insufficient. But appellant omitted some of the fee bills in support of the motion, thus making the record inadequate to review the claimed error.

The second recent case involves a contested probate proceeding with the probate court siding with sister over brother concerning their father's estate. In Estate of Greer (3D Dec. 21, 2020) (unpublished) No. C087492, the probate court awarded $10,000 in unpaid rent against the son who had lived in the estate home, and a statutory penalty of $5,000 for bad faith conduct. Son appealed, but nearly every one of his arguments lost because he failed to prepare a good appellate record, omitting various pleadings and exhibits.

For example, son argued under the will he, not sister, should have been executor. But, the Court noted, the record "does not contain the trust declaration," and did not include the moving papers and transcripts, or the probate court's order. Thus, brother forfeited this argument.

Son also sought reimbursement of expenses, citing exhibits that supported his argument. But these exhibits were not included in the record, either. Thus, forfeited.

Son also argued the award of attorney fees to his sister was excessive. Here again, the record had holes in it, so the Court must "presume sufficient facts support the trial court's findings of fact and exercise of discretion."

Son also failed to include the record supporting he did not act in bad faith. So again, the Court must "assume all facts necessary to support any implied ruling" existed.

The Upshot: Substantial-evidence appeals must include all evidence supporting the judgment; and if there are any gaps in the appellate record, the Court of Appeal will presume those gaps are chock-full of evidence supporting the judgment, and totally barren of any evidence supporting reversal.

Hiring an appellate specialist is an excellent way to avoid losing appeals for these easily-avoidable procedural missteps.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.

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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