Appellate Procedure,  Post-Trial Practice,  Standard of Review,  Statement of Decision

The Doctrine of Implied Findings is Serious Business

Under the doctrine of implied findings, the Court of Appeal will presume that the trial court made all findings necessary to support the judgment.  The only way for the appellant to avoid that presumption is to request a statement of decision pursuant to Code of Civil Procedure section 632, and then to object, pursuant to Code of Civil Procedure section 634 (either by objection prior to entry of judgment or by statutory motion for new trial or motion to vacate the judgment), to any statement that omits necessary findings or contains ambiguous findings.

There is a lot that can be written about this process, but this post is limited to points raised in last Friday’s decision in the Fourth District Court of Appeal case of Ermoian v. Desert Hospital, case no. E036982 (June 22, 2007).  The published portion of the case contains some good nuggets for trial counsel who may be involved in a bench trial.

First, the case is a pretty decent primer on the doctrine of implied findings.

Second, the case emphasizes that the doctrine of implied findings binds the hands of the Court of Appeal.  The court takes the doctrine seriously and is not likely to look for ways around it.  In fact, in this case, the court asked for supplemental briefing about whether the appellant had brought inadequacies in the statement of decision to the trial court’s attention.

Third, it holds that some purported objections to the statement of decision simply don’t count.  A notice pursuant to rule 8.130 (formerly rule 4), California Rules of Court, pursuant to which an appellant who orders less than a complete reporter’s transcript must state the points to be raised on appeal, doesn’t cut it.  It is intended for the clerk of the superior court, not the court itself, and the mere recitation of points to be raised on appeal would not put the superior court on notice of statement of decision deficiencies in any event.  Nor is it enough to object to the entire proposed statement of decision drafted by your adversary (at the request of the court) with a demand that the court prepare its own statement.  This amounts to nothing more than a second demand for a statement of decision.  Objections must be specific enough for the court to be able to take corrective action.

Fourth, the statement of decision need not respond point by point to every purported contested issue in the request for the statement of decision.  It is enough for the superior court to disclose its determinations “as to the ultimate facts and material issues in the case.”

Sound advice to trial counsel as to the doctrine of implied findings and the statement of decision process: Learn it.  Live it.  Love it.

Update (6/25/07): The Appellate Practitioner has a post about the case, with special mention of the court’s handling of the premature nature of the appeal.  You’ll recall I posted about “saving” premature appeals here, wondering whether the practice might someday be challenged in the Supreme Court.  The Appellate Practitioner’s point highlights the implication in the headline for this post — while the Court of Appeal seems often to go out of its way to preserve a procedurally improper appeal, it does not appear to be nearly as generous in construing various filings as proper objections to a statement of decision, at least not judging by the facts of this case.  Then again, the objections in this case were not substantively sufficient either.  In the right case, however, where the objections are specific enough and presented to the superior court, even by an improper procedure, might the court grant some leeway?

There is one other interesting aspect of the decision.  The appellant contended, for reasons the court opinion does not disclose, that she was entitled to de novo review of the evidence on negligence and causation.  The Court notes that the only situation in which de novo review of factual findings is appropriate is where only one reasonable inference can be drawn from undisputed facts, and finds way too many such disputes to apply the de novo standard.  Thus, the Court of Appeal evaluates the evidence under the venerable “substantial evidence” standard.  The disputes seem so obvious that I’m left to wonder if the appellant did not advance some other basis for de novo review that the court simply decided not to set forth in its opinion.