Kowal Law Group Logo
California Supreme Court Calendar

When do you have to request a statement of decision?

Tim Kowal     February 9, 2023

When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can request the statement of decision then.”

Not always, as the ARCO learned in Atlantic Richfield Co. v. California Regional Water Quality Control Board (D3 Dec. 5, 2022 no. C093124) 2022 WL 174141444 (nonpub. opn.). Following lengthy proceedings resulting in a cleanup order against ARCO, the Court of Appeal remanded the matter to the trial court for further proceedings. The trial court held a hearing that lasted all of 79 minutes. ARCO did not request a statement of decision before submitting. Instead, ARCO assumed it could wait until the trial court issued its written order, when it would have a 10-day period (plus a 5-day extension for mail service under CCP 1013) to request a statement of decision.

Not so. The trial court denied the request as untimely, because under California Rules of Court rule 3.1590(n), “When a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision . . . .”

ARCO then made an argument that was too clever by half—though it was supported by caselaw. ARCO argued that, although the proceedings only lasted 79 minutes, the judge must have spent a lot of time reviewing the voluminous record, and that would have taken more than eight hours. ARCO relied on Bevli v. Brisco (1985) 165 Cal.App.3d 812, 820.

But the court cast doubt on Bevli, and in any event did not follow it. Instead, the court followed In re Marriage of Gray (2002) 103 Cal.App.4th 974, including this quote from Gray explaining how to count to eight hours for purposes of determining whether you have to request a statement of decision at the hearing:

“We cannot realistically expect trial judges to keep stopwatches to record time spent off the bench in chambers, a home office, or at the kitchen table studying the law and evidence. Rather, the eight-hour rule in section 632 requires a simple and obvious mode of timekeeping that everyone, including attorneys, can keep track of. This means that, for purposes of keeping time of trial under section 632 in civil proceedings other than administrative mandamus (an issue not before us), the time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse. It does not include time spent by the judge off the bench without the parties present—lunch, for example—except for such routine recesses as occur during the day.”

The Upshot: Failing to request a statement of decision can affect the outcome of your appeal. (See here for an example.) You need to request a statement of decision before the matter is submitted if the proceedings are less than one day or eight hours. How do you count eight hours? Include all time in open court, including recesses—but not lunch and evening recesses.

But why risk it? Just ask for a statement of decision before submitting. Even better: file a written request for a statement of decision at the outset of the proceedings, identifying the key issues on which you want the court to make 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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!
Subscribe

"A judge is a law student who grades his own papers."

— H.L. Mencken

"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

"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

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"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

"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

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"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

"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.)

Copyright © 2024 Kowal Law Group
menuchevron-down
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram