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 decide the factual issues. That will usually be difficult.