Don’t Forget, Appellants: The Record is Your Burden, Too

Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court:

Critical to our review of any summary judgment is the moving party’s separate statement of undisputed facts. Gunn elected to proceed by way of an appellant’s appendix (Cal. Rules of Court, rule 8.124), in which he has included Mariners Church’s points and authorities and its attorney’s declaration to which various deposition pages and other pieces of documentary evidence, but not Mariners Church’s actual separate statement of undisputed facts. Gunn’s failure to provide a complete record arguably precludes him from meeting his appellate burden. [Citations.]

Gunn has, however, included his own separate statement in the appellant’s appendix, which appears to be in the form required by the court rules juxtaposing Mariners Church’s assertions of undisputed fact with Gunn’s responses thereto. (Cal. Rules of Court, rule 3.1350(d).) And Mariners Church does not suggest Gunn’s separate statement inaccurately represents its statement of undisputed facts. Accordingly, we will proceed on the merits based on Gunn’s separate statement and the evidence Mariners Church submitted.

I wonder how much of the court’s forgiveness was due to the fact that it affirmed anyway. I suspect most panels would be quite reluctant to reverse on a similar record.

The bottom line: don’t rely on the court’s largesse. Include a thorough record.