The California Blog of Appeal

Welcome to all first-time visitors led here from the mention of me and the blog in the May 2008 California Lawyer article, Debate Heats Up Over Unpublished Opinions. (For those who haven’t seen the piece, it highlights the recent case of Hild v. California Supreme Court (No. C-07-5107-JCS (N.D. Cal. filed Oct. 4, 2007)), which the article describes as arguing “that the state’s publication rules violate Californians’ due-process and equal-protection rights by creating ‘a de facto policy of refusing review of unpublished decisions in civil cases.’” The piece discusses the case in the context of the ongoing debate over whether the rules should allow citation to unpublished opinions.) My original post on Hild has some useful links, including a good article by How Appealing’s Howard Bashman.

By the way, the writer of the piece is freelance legal writer Lorelei Laird, whose own cleverly named blog, I Am Not a Lawyer, examines legal issues from the perspective of a non-lawyer.

I’m eager to get into the cover story for this issue, which is about law blogs, but I haven’t had a chance yet. From the look of the cover, though, it appears to make the legal blogosphere look scary! In any event, I’ll put up a post this weekend about my thoughts on the cover article.

Again, if you’re here because you saw the article, welcome! Stay awhile and poke around. Check out the sidebar information. If you’re going to scroll through entries, go back at least two weeks; last week was a light blogging week. Try pulling up all posts in the Legal Writing category, all posts in the Appellate Procedure category, or any other category in the right sidebar that catches your fancy. And come back soon, or subscribe to the RSS feed. (Not sure what an RSS feed is? Click here.)

UPDATE (5/8/08): Per my usual practice with these “welcome” posts, I’m going to leave this post atop the blog for the next few days so the targeted readers don’t miss it as they trickle in. Please look for new posts below this one until then.

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.

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There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying.

This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though I don’t know if the officer had the same model) and Taser (pictured left) “similarly-sized-and-weighted,” and they were both holstered on her right side, the Glock on her belt and the Taser in a thigh holster. To add to this sad situation, the sequence of events was triggered by nothing more than a loud music complaint.

In this suit alleging a violation of the victim’s Fourth Amendment rights, the officer and the city moved for summary judgment, contending that because a Fourth Amendment seizure can occur only “through means intentionally applied,” and there was no dispute over the fact that the officer thought she was firing the Taser rather than the Glock, the firing of the Glock could not constitute a seizure. The Court of Appeals reverses, noting that the firing of the Glock itself does not constitute the seizure in this case because the victim had already been arrested, handcuffed, and placed in the patrol car. Under the Ninth Circuit’s “continuing seizure” rule, under which an initial seizure continues “throughout the time the arrestee is in the custody of the arresting officers,” the officer’s conduct remained governed by the Fourth Amendment throughout the course of the seizure, and liability requires only that the officer’s conduct was unreasonable, not that she had subjective intent to fire her Glock.

Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them.

This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply for fees and costs. The owners appealed from the permanent injunction, and while the appeal was pending, the People moved for and were awarded fees and costs. The court ordered an “amended judgment” that not only added the award for fees and costs, but

apparently changes some of the language in the prior judgment. The amended judgment appears to contain substantive changes beyond the insertion of the amounts awarded for attorney fees, investigative costs and court costs. For example, the amended judgment purports to add language that “[a]ny future costs relating to enforcement and/or modification of the [j]udgment shall also be recoverable by [respondent] in a sum according to proof.”

The owners filed an “amended notice of appeal” from the “amended judgment,” which the court liberally construed as a notice of appeal from the order awarding fees and costs.

Now, there’s no question the court had power to entertain and rule on the motion for fees. The other amendments to the judgment? Well, not so much:

The trial court acted in excess of its subject matter jurisdiction by entering an amended judgment modifying the terms of the permanent injunction after a notice of appeal had been filed. In Holtum v. Grief (1904) 144 Cal. 521, 524-525, overruled on another point in Phelan v. Superior Court (1950) 35 Cal.2d 363, 371, our Supreme Court said: “The decisions of this court are numerous and uniform to the effect that a judgment or order once regularly entered can be reviewed and set aside only in the modes prescribed by statute. If they have been entered prematurely or by inadvertence, they may be set aside on a proper showing [citation], and if the order as entered is not the order as made, the minutes may be corrected so as to make them speak the truth [citation], but subject to these exceptions the order is reviewable only on appeal, and the decision of the trial court having been once made after regular submission of the motion its power is exhausted–it is functus officio. [Citations.]” (Accord, Fallon v. Superior Court (1939) 33 Cal.App.2d 48, 52-53; see also Stevens v. Superior Court (1936) 7 Cal.2d 110, 113-114; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185.)

One thing I like about this case is that it invokes a 104-years-old case without a hint of self-consciousness — and the quotation from that case invokes earlier, but undisclosed, authorities. Sometimes, an old case is the only one — or at least the best one — you’ve got. So long as it’s still good law, use it.

Redlines, spell checking, auto-numbering, auto-capitalization, auto-page numbering . . . has high-tech document creation made us lazy proofreaders?  For some great low-tech proofreading tips, see Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages (PDF Download) from Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine

Hat Tip: Legal Writing Prof Blog.

“Tower of Babel” Image via Wikipedia

The law is a profession where words really, really matter. Sometimes, ensuring the same meaning across languages can be difficult, especially in the absence of an available literal translation. Attorneys who find themselves dealing with witnesses who don’t speak English at all or not well enough to communicate in court will want to to check out How to Work with Court Interpreters at Winning Trial Techniques.

The post provides a 21-item checklist. both of things to do and things not to do, to ensure that you maximize the witness’s effectiveness. As with almost everything we do, preparation is key. About a third of the list is dedicated to things to accomplish before you get to court, while the remainder focuses on techniques to utilize in court.

One of the commenters offers his blawg dedicated to the subject, Translation for Lawyers.

Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008).

Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party.

Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending resolution, Griffith could not be considered the prevailing party under Civil Code section 1717. Griffith clearly prevailed on the claims in California, and that is all the award was concerned with.

The part that’s hard to understand is the reasoning employed by Profit Concepts in pursuing the appeal, both legally and practically.

Legally, it’s hard to understand why Profit Concepts cited case authority interpreting an older version of Civil Code section 1717 that had changed in a very material respect. Specifically, while the former statute defined a “prevailing party” in terms of obtaining a final judgment, the current version defines prevailing party as, among others, a party that obtains a dismissal. That’s a pretty clear and relevant distinction.

The practical part is just as hard, if not harder, to understand. The attorney fees awarded were barely $3400. What made this appeal practical?

Time to upgrade Wordpress again, this time to version 2.5.1.  I’ll be doing that this weekend, so the blog may be unavailable briefly on Saturday or Sunday.  I tend to do these things in the wee hours, when there’s less traffic, to minimize the disruption.  But you never know.

I was searching for an old post at Wayne Scheiss’s legal-writring blog and accidentally ran across this nugget from 2005 on use of the word “blatant”:

I’m starting to put it in the same category as “clearly” and “obviously.” It does not persuade. It only draws attention to itself as an effort to sound persuasive. Anytime a word draws attention to itself, it’s not good. And the attention it draws is therefore usually negative attention. I won’t use it in my writing.

From Ray Ward at the (new) legal writer:

Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit.

He directs you to Legal Writing Prof Blog for instructions on how to submit to JALWD “[i]f you’re brave enough to actually want to write an article” for them. One should be prepared, I assume, for some extensive constructive criticism!

Robert Ambrogi’s Lawsites has this update on free on-line case law resources. The most notable link is to a review of PreCYdent, which may be living up to its hype as “the Google of legal research.” Says the reviewer:

I was stunned by the results of my search [for "in personam jurisdiction"] on PreCYdent. The top six cases were the leading U.S. Supreme Court cases I studied in Prof. Reimann’s jurisdiction class. Each of them is fundamental to an understanding of the application of personal jurisdiction in federal courts. I have never seen a such a highly relevant set of search results on any electronic case search engine. Not in Westlaw. Not in Lexis. Not anywhere.

***

This stellar result was no accident or the result of preprogammed “best bets.” I tested a few other terms (e.g., “abortion” “sodomy”) and had comparably stellar results. The statute search also worked quite well. And this is the “Beta” release!

Before you discount the review, consider that it is from David Hobbie, the Litigation Knowledge Manager for Goodwin Procter. He’s in the information business.

Still, it’s hard to imagine that lawyers well-versed on a paid subscription service are going to convert completely to any of the public domain services any time soon. There’s always the problem of trying to get lawyers to try something new. And the paid services will look for ways to stay a step ahead of the game.

For lawyers who find Westlaw or Lexis unaffordable, however, it looks like PreCYdent may already be a useful adjunct to combing through the digests looking for case law. And there will surely be more to follow.

I almost feel a little guilty celebrating my blogging anniversary today reading that Robert Loblaw at Decision of the Day is hanging up his keyboard. His announcement says he is saying “farewell to the frenzy” and describes the history of his blog.

Many law bloggers, including yours truly, will miss his writing, which I once described as “Gold . . . Pure Gold.” He’s done a stellar job for years, If I tried to keep up the pace he did, I probably would have been beaten into the ground long ago. When I put his blog in my top 10, I wrote, “I still can’t figure out how Loblaw gets these posts up so close on the heels of the release of the decisions. It’s as if the courts e-mail the decisions straight to his brain.”

Good luck to you, Robert Loblaw!

Image via Wikipedia per GNU Free Documentation License

The California Blog of Appeal launched at 3:12 pm on April 30, 2007, with a first post entitled “The California Blog of Appeal Will Now Come to Order!” (Seemed clever at the time, anyway.) I don’t think I’ve wandered far from the vision I described in that post.  So, if I may be self-congratulatory for a few minutes . . .

This is the 539th post on this blog.  The 539 posts span 135 categories (I may be going a bit overboard on cateogrization) and altogether contain more than 164,000 words. That’s the equivalent of nearly a dozen maximum length civil appellate briefs. Whew!

As for readership, the blog had 767 page views last June and has more than 4300 page views this month - nearly a 6-fold increase.  As the graph below shows, the last two months have exceeded even last October’s traffic spike, which resulted in large measure from a single post that got picked up and linked to by Overlawyered (and hosting Blawg Review #155 this month with a link from Instapundit sure didn’t hurt):

Of course, part of that growth is due purely to the increasing number of posts over time, which means more and more posts will be found in Google searches.

In the same period, RSS feed subscriptions have gone up from 9 to around 150 (though the badge in the right sidebar often shows about half that because it often fails to include Netvibes subscribers).

To everyone: thanks for reading, commenting and linking here. Here’s hoping you see a post here on the blog’s second anniversary — and many more between now and then.

P.S. One not-so-good stat: more than 16,000 spam comments intercepted by my spam blocker! That stuff is everywhere.

I discovered the new blog Judgment Day a couple of weeks ago, when my stats page showed that it linked to The California Blog of Appeal. The blogger there is an anonymous attorney who dies work as appointed counsel on criminal appeals in New York and goes by the nom de blog (or is that nom de blogue?) Blakely, after Blakely v. Washington (2004) 542 U.S. 296 . Notwithstanding his (or her) New York home base, Blakely has already had a number of posts relevant to California practice.

Welcome aboard, Blakely. And congratulations on the second-best blog name ever (according to me, that is).

One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had).

So, here’s the skinny:

Date: June 19, 2008

Time: noon- 5 pm

Place: Southwestern Law School (Los Angeles)

This description of coverage comes straight from straight from the promotional materials (PDF download) from the presenting organization, the National Association of Legal Fee Analysis:

Fee‐Shifting Provisions & Prevailing Party: Statutes & Case Law

Fee Recovery in Commercial Litigation

Attorney Fees in Class Action Litigation

Attorney Fees & Legal Billing: A Practical Guide

Reasonable Fees in Cumis Counsel Situations

Recovering Attorney Fees in Insurance Bad Faith Litigation

Looks promising. The PDF materials include a link to th registration site, or just click here.

For their book, of course. (Mr. Garner’s speaking fees are considerably higher, I’m sure.) Making Your Case: The Art of Persuading Judges is scheduled for release today.

An article describing Justice Scalia’s and Mr. Garner’s collaboration is here.

Hat tip: CAAFlog.

Things are a little crazy for me this week, so posting will be light. In fact, I’m not sure I’ll post anything other than the posts I already have in the queue to publish throughout the week. That means I won’t have any breaking news on cases. But I will have a few posts trickling out throughout the week, including a special anniversary post on Wednesday.

This post highlights a post I included in Blawg Review #155 and a related post I ran across since then. Both concern how to stay out of trouble regarding electronic data.

The first, featured in my previous post, is The Multipass Erasures Myth from EDD Update, a blog about electronic data discovery. Just how much “scrubbing” of your hard drive does it take for that data on your hard drive to be unrecoverable? I think you’re going to be surprised at the answer.

The second is a post on the ethics of mining metadata in documents received from adverse parties. What is metadata? Well, the Wikipedia article on metadata is a tad geeky, so let’s go for now with what I consider a safe layman’s definition of metadata, especially for purposes of the post I am talking about: “any information about the document stored electronically in the document file and not visible in the viewed document.” In a document saved in multiple versions in a single file, this might include the previous versions, the identities of everyone who worked on the document, creation and modification dates, comments by reviewers, etc. When it comes to documents received electronically from adverse parties, there’s obvious potential for mischief, as Robert Ambrogi points out in Metadata: Read at Your Own Risk, referencing a report from a bar organization in New York that he found at Legalethics.com.

(Hat tip: Legal Blog Watch, via EDD Update.)

Image from Wikipedia

Ray Ward posted several months ago that starting a sentence with a conjunction is okay in an appellate brief. I wholeheartedly agree. I think it can make a sentence more powerful.

Ward justifies the practice in part because the Unites States Constitution includes sentences starting with conjunctions and concludes, “So if it’s good enough for the U.S. Constitution, it’s good enough for that brief you’re working on.”

But don’t take that logic too far. One of the constitutional excerpts Ward provides is Article II, section 1: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each…. But in chusing the President, the Votes shall be taken by States…. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.” I would never advocate to the appellate court that it should “chuse” my position!

Wagner v. Wagner, case no. B197703 (2d Dist. Apr. 23, 2008) is more than just the latest installment of a familiar sad story: siblings fighting over Mom’s estate. It introduces the secret mental claim.

Claire moved in with and took care of her Alzheimer’s-stricken mother for the four years preceding her death. Claire was the successor trustee to her mother’s living trust, so she became the trustee upon her mother’s death. Brother Kent grew impatient and dissatisfied with his sister’s administration of the trust, and convinced her to hire a lawyer. At a meeting of Kent, Claire, and the attorney, Claire told Kent that she intended to file a claim for compensation for the four years that she took care of their mother, but didn’t tell him the amount.

Claire never got around to filing the $200,000 claim until after Kent petitioned for an accounting and administration of the trust. This made the claim untimely. Give her points for originality in arguing for timeliness of her claim (emphasis added):

Anticipating this conclusion, Claire argues she effectively complied with this statute because she formed the claim in her mind within the one-year period and thus presented the claim, to herself, well within the statutory period. She reasons she was not required to present the claim in writing because she elected to proceed informally and was entitled, as trustee, to waive any defects in the presentation of the claim. The timeliness of the claim, she argues, is evidenced by her disclosure to Kent of her intent to submit the claim at their June 2004 meeting. According to Claire, presentation of the claim in this manner tolled the statutory one-year period while she administered the trust and prepared her accounting.

***

However, Claire’s assertion she was entitled to submit an oral claim (and what her brother calls “a secret mental claim”) is contrary to the requirements of the Probate Code.

And you thought e-filing was advanced!

Image via Wikipedia

From Harmful Error:

[Tuesday] night’s episode of Boston Legal included a fairly amazing, even if a tad bit on the fantasy end of the spectrum, speech to the US Supreme Court, before actors who look very much like the real justices.

For more details and alink to the 10-minute clip on Youtube, see the post. If I run across any more blogs posting about the episode, I will link to them from this post.

A while back, I told you about a lawyer who blogs about episodes of The Office, tallying up the liability incurred in each episode. Maybe someone — someone with a lot of time on their hands, that is — ought to do that for Boston Legal.

UPDATE (4/25/08): Legal Profession Blog compares and contrasts Boston Legal with The Office.

Legal Writing Prof Blog invites everyone to join the Legal Writing Institute. LWI is free and open to anyone interested in legal writing or the teaching of legal writing.  Go to the membership page to sign up.

According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment.

I covered the relevant holding regarding appellate jurisdiction in my original coverage:

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

The amended opinion holds that the court has jurisdiction to hear the appeal because a Rule 11 plea in itself deprive the court of appeals of jurisdiction and the defendants did not explicitly waive their appeal rights in their plea agreements.

Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.

Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases.

In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added):

In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.

Counsel must be careful not to be drawn in by the “liberally construed” language. By the terms of the section, such liberal construction is to be afforded “except where in the interests of justice a new trial is required on some or all of the issues.” The rule is even stricter than this wording suggests, for the exception proves to be the rule, as the Valerie W. opinion makes clear:

The court in Zeth S. set forth the general rule that:

” ‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition,
upon a record of matters which were before the trial court for its consideration.’
[Citation.] This rule reflects an ‘essential distinction between the trial and the
appellate court . . . that it is the province of the trial court to decide questions of
fact and of the appellate court to decide questions of law. . . .’ [Citation.] The rule
promotes the orderly settling of factual questions and disputes in the trial court,
provides a meaningful record for review, and serves to avoid prolonged delays on
appeal. ‘Although appellate courts are authorized to make findings of fact on
appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules
of Court, the authority should be exercised sparingly. [Citation.] Absent
exceptional circumstances, no such findings should be made. [Citation.]‘
[Citations.]” (Zeth S., supra, 31 Cal.4th at p. 405, italics added.

Bottom line: appellate counsel cannot rely on the mandated liberal construction of section 909 without first demonstrating that the case is an exceptional one where the interests of justice do not require the trial court to hear and decied the factual issues.  That will usually be difficult.