If you’re planning to appeal, you need a court reporter at your hearing. But what if the hearing is over a pure question of law, like whether there’s an enforceable arbitration provision? That’s what happened in Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.), involving an appeal from a denial of a petition to compel arbitration. The court affirmed because of the lack of an oral record.
Counsel thought a reporter's transcript was unnecessary because review on appeal was de novo anyway. But the Court of Appeal refused to assume that was the case. After all, the trial court did not give reasons for its ruling. So it was conceivable that the hearing involved something other that pure questions of law. “Without a record of the proceedings, we cannot discern the basis, whether factual or legal, for the court's order.”
Counsel had one last trick up his sleeve: he filed a declaration assuring the Court of Appeal that nothing was discussed at the hearing on that pure questions of law. Nope: “a unilateral declaration is not a suitable substitute for a transcript of the proceedings under California Rules of Court, rule 8.137. (See In re Zeth S. (2003) 31 Cal.4th 396, 405 [authority of courts of appeal to make findings of fact on appeal should be exercised sparingly].) Accordingly, we affirm the court's denial of the motion on the grounds that defendant has failed to establish error by an adequate record.”
If you don’t have a court reporter, check the box on the designation of record form indicating you’d like a settled statement. That starts the process, and you’ll just need to fill out the Judicial Council form APP-014 to propose the settled statement. It is not as convenient as a reporter's transcript, but it is far better than losing your appeal because of a record error.
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 www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. If you need help with a trial or appeal or have an interesting legal question, contact Tim at [email protected] or (949) 676-9989.
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