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Use a settled statement to fill gaps in your record (but don’t try to rewrite the record)

Tim Kowal     April 4, 2023

Nice try, but this is not what a settled statement is for.

The defendant in **********Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771 was served with a complaint but failed to answer. In October, Brannon went into default, and five months later got a default judgment against him.

On appeal from the denial of his motion to set aside the judgment, Brannon came up with a clever application of the settled statement process. Remember that a settled statement is a summary description of the documents or oral proceedings in the trial court. Brannon put together a settled statement that said he never got notice of the October default.

But the settled statement contradicted the declaration of Rok's counsel in the written record. Rok’s counsel declared under penalty of perjury that he mailed Brannon the default the day the court clerk entered it. So the court concluded “We reject this use of the settled statement.”

Besides, the court went on, “nonreceipt of the notice [of default] shall not invalidate or constitute ground for setting aside any judgment.” (Code Civ. Proc., § 587; Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 537.)

Comment: You should still consider the appellant’s example here and use a settled statement to buttress your record. Do not use a settled statement to try to rewrite the record, of course. But if documents or an oral transcript are not available to clearly show what happened, consider using a settled statement.

Some good possible applications of a settled statement:

  • Show what happened during a sidebar
  • Describe a demonstrative exhibit
  • Describe what happened at a law-and-motion hearing
  • Capture your request for an evidentiary hearing or a statement of decision
  • Capture your objections to jury instructions
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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