Contributors

Julie S. Pearson

Principal

You know it's coming. That significant factual decision by the trial court that counsel has warned you won’t go your way. While you’ve geared up mentally for the losing ruling, and know the appeal is coming, the first step counsel will take is to prepare to secure a Statement of Decision.

What is a statement of decision?

The prospect of an unfavorable trial court decision on a material issue of fact and potential of appeal, make it essential to obtain a Statement of Decision. It serves as a roadmap of the trial court’s factual findings and legal conclusions.[1] It can be used to correct errors or omissions in the trial court’s tentative decision if one was issued.[2] A Statement of Decision benefits the parties and the Court of Appeal, by providing a report of the trial court’s reasoning supporting the ruling or judgment, to be relied upon by the Court of Appeal in determining whether errors warrant reversal of the decision. Absent a Statement of Decision, effective appellate review of factual determinations would be nearly impossible.[3], [4]

California Civil Procedure Code (“CCP”) § 632 provides for a Statement of Decision. It states in part, “[t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” CCP §632 also includes numerous prerequisite requirements and timing concerns. In addition to the provisions of CCP §632, further procedural requirements for requesting a Statement of Decision are found in California Rules of Court Rule (“CRC”) 3.1590 “Announcement of tentative decision, statement of decision, and judgment”.

Together they create what can be a procedurally quirky process to obtain a Statement of Decision, an essential part of any appeal of the trial court’s decision.

What proceedings permit a request for a statement of decision?

A Statement of Decision is available in limited circumstances. The most common proceeding which permits a request for a Statement of Decision is following a non-jury trial (also known as a bench trial) of disputed issues of fact.[5]

A bifurcated non-jury trial of a question of fact also permits a request for a Statement of Decision.[6] Less common but also a basis to request a Statement of Decision is a hearing on a petition for writ of administrative mandamus.[7]

Although generally not available following a hearing on a motion, in some circumstances a Statement of Decision may be available after a ruling on a motion for judgment, or after a hearing on a motion when authorized by statute. In particular, CCP §631.8 authorizes a Statement of Decision following a motion for judgment following a non-jury trial; CCP § 1291, provides for a Statement of Decision after a petition or motion to compel arbitration which requires a determination of factual disputes.[8] Also, statements of decision are specifically authorized in certain family law proceedings, such as custody proceedings.[9]

Who should request a statement of decision?

Following a non-jury trial, or the specified motion hearings described above, the losing party may request a Statement of Decision to address important unresolved or ambiguously resolved material facts. A carefully drafted proposed Statement of Decision can bring those issues to the attention of the court without prompting further adverse findings on those facts. If successful, this can weaken the presumption on appeal in favor of the court's decision.

But, a prevailing party can also request a Statement of Decision in response to a trial court ruling to obtain resolution of omitted or ambiguous factual decisions in a manner which is consistent with the favorable ruling. Such a Statement of Decision can establish the validity of the trial court’s ruling, potentially insulating the decision from appellate challenge.

Why request a statement of decision?

The primary, compelling reason to request a Statement of Decision is for purposes of appeal. The Statement of Decision is the losing party’s best opportunity to object to deficiencies in the court’s decision. It can serve as the readily available “touchstone [for the appellate court] to determine whether or not the trial court’s decision is supported by the facts and the law.”[10]

Importantly, without a Statement of Decision, the doctrine of implied findings applies. This appellate rule requires the Court of Appeal to infer that the trial court made all the necessary findings of fact in favor of the prevailing party.[11] The inference can effectively insulate the trial court’s ruling from appellate review.[12] Without a Statement of Decision, the Court of Appeal will only review the trial court’s findings for the existence of substantial evidence in support of the inferred findings of fact.[13]

Requesting a Statement of Decision also provides the foundation for a motion for a new trial, because it can establish the precise facts found by the trial court, and can assist in identifying misapplication of law to facts.[14]

How is a statement of decision requested?

A Statement of Decision is not issued automatically.[15] Rather, a Statement of Decision shall issue upon request.[16] Timing of the request – determined by the length of the hearing or trial – is crucial.

If the nonjury trial lasts less than one day, or fewer than eight (8) hours over several days, the request must be made before the case is “submitted”.[17] For purposes of CCP §632, the “time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse. It does not include time spent by the judge off the bench without the parties present—lunch, for example—except for such routine recesses as occur during the day.”[18] ‘Submitted’ is defined as the date the court orders the matter submitted, or the date argument is heard or the date the final paper must be filed, whichever occurs latest.[19]

In those limited circumstances where a request for a Statement of Decision is permitted for a ruling on a motion, it is almost certain the hearing will last less than one day or eight (8) hours. The request must be made before the conclusion of the hearing when the matter is submitted. If the request is not made orally, it must be filed with the clerk before the conclusion of the hearing. If the request is made orally, the additional procedure involved in a Statement of Decision of submitting a “proposal” by the other party will also take place before the conclusion of the hearing.[20]

If trial is longer than one day or eight (8) hours over several days, the request must be made within ten (10) days after the court announces a tentative decision.[21] A request for Statement of Decision is not made until it is received by the court.[22]

As noted above, a request for a Statement of Decision may be made orally or in writing.[23] However, requests are generally written because the request must specify the principal controverted issues the court should address, and a general request for a statement is usually not sufficient.[24] To the extent those significant unresolved material issues can be identified prior to the start of the hearing or trial, a written request should be prepared which specifies the particular issues the party would like the court to address in the Statement of Decision, which can be filed and served prior to the start of the hearing or the final day of trial.

How does a tentative decision impact the need for a statement of decision?

A tentative decision does not apply if the trial or hearing was completed within one day or less than eight (8) hours over more than one day.[25] Where applicable, the court issues its tentative decision after a bench trial to informally reveal the judgment the court is inclined to render.[26] The announcement is preliminary—it does not constitute a judgment and is not binding on the court.

The court can announce its tentative decision in open court or by written decision. When the judge rules from the bench upon the conclusion of oral argument, the deadline to file and serve a request for Statement of Decision begins to run.[27] In cases taken under submission by the court, the tentative decision is announced in a writing filed with the clerk, with a copy served every party. The deadline to file and serve a request for Statement of Decision begins to run from the date of service.

Where the written tentative resolves all factual issues, and states “it is the court’s proposed statement of decision, subject to a party’s objection” it can eliminate the need for a request for a Statement of Decision by either party.[28] The tentative ruling can also state that “the court will prepare a statement of decision” or assign the responsibility to a “party to prepare a statement of decision”.[29] Usually, the prevailing party prepares the Statement, since to do otherwise would have the losing party prepare findings and conclusions subject to attack on appeal.[30]

The foregoing is complicated by the fact that the reference to “subject to a party’s objection” permits either party to assert an objection to the tentative ruling deemed the court’s Proposed Statement of Decision.[31] Additionally, a tentative decision “does not constitute judgment and is not binding on the court.”[32] Accordingly, the court may modify a tentative decision prior to entry of judgment.[33] This lack of binding finality means the tentative decision also cannot be relied upon to bolster, challenge or supplement a final Statement of Decision.[34]

What to include in a request for a statement of decision

Because its purpose is principally to serve as an appellate roadmap to the issues on appeal, a request for a Statement of Decision must identify the ultimate factual and legal bases underlying the trial court’s decision which are determinative of the outcome of the case.[35]

While it may be tempting to include an exhaustive list of every disputed issue to avoid possible forfeiture, the court is not required to respond to every issue raised in a request for Statement of Decision.[36] An effective request for a Statement of Decision will identify the ultimate facts essential to elements of a claim which are disputed.[37] This is true whether your purpose is to point out the gaps in evidentiary rulings, or confirm and solidify favorable determinations.

How to respond to a request for a statement of decision

Further procedural quirkiness arises following the filing[38] of a request for a Statement of Decision. Once a request for a Statement of Decision is filed and served [39]any other party has ten (10) days to file its own proposal as to controverted issues to be addressed in the content of the court’s Statement of Decision. If a request for Statement of Decision is made orally, the proposal must also be made orally before the hearing concludes.

After the ten days expire, the trial court can then either choose to prepare the Proposed Statement of Decision itself, or direct a party to prepare the Proposed Statement of Decision, and a proposed judgment, to be filed and served within thirty (30) days of the date of the tentative ruling.[40] Failure to do so can result in the losing party filing and serving their own Proposed Statement of Decision.

How to object to a proposed statement decision?

An objection to the Proposed Statement of Decision may or may not be necessary. Rather than disputing the trial court’s findings, an objection should focus on whether the Proposed Statement of Decision resolves all of the material issues in a clear and unambiguous fashion. A specific objection should be asserted with sufficient detail to identify material facts or issues not resolved or the aspects of the requested Statement of Decision which are ambiguous.

Once the Proposed Statement of Decision is filed and served, a party has fifteen (15) days to file and serve an Objection to the Proposed Statement of Decision, and request for a hearing thereon.[41] Holding a hearing is at the court’s discretion.[42] Failure to timely object forfeits the opportunity to do so.[43]

The court is responsible to review, correct, supplement and edit a party’s Proposed Statement of Decision.[44] The Objection serves to provide direction to the court to carry out this task. Thus, an Objection must specifically point to an unresolved or ambiguously resolved principal controverted issue of fact in the Proposed Statement of Decision; a generalized objection is insufficient.[45]

Following a hearing on the Objection at the court’s discretion, the court shall issue its Final Statement of Decision.[46] However, the court retains the power to change its findings of fact or conclusions of law until judgment is entered.[47] Thus, even a Final Statement of Decision issued by the court is not automatically a final decision.[48] If significant ambiguities or errors are contained in the Final Statement of Decision, a party may again file and serve an Objection and request for hearing if timely made before judgment is entered.

What happens if no statement of decision is requested?

As noted above, failure to request a Statement of Decision has two primary consequences. “First, the party waives any objection to the trial court's failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.’[49]

Failure to timely request a Statement of Decision may be cured at any time before entry of judgment. The court may, for good cause shown and on just terms, excuse a party’s failure to comply with any of the time limits for doing any act required by this CRC 3.1590.[50]

If you have a trial court decision of principal controverted issues in your future, being prepared to manage the procedural peculiarities of securing a Statement of Decision can be the foundation to a successful appeal.

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Footnotes

[1] In re Marriage of Sellers (2003) 110 Cal App. 4th 1007, 1010; Young v. California Fish & Game Comm'n (2018) 24 Cal. App. 5th 1178, 1192 (Statement not required for issues of law.

[2] Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal. App. 3rd 1126, 1128-29.)

[3] Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal. App. 4th 654, 661.

[4] Matters subject to de novo review may avoid this outcome.

[5] CCP §632, Schmidt v. Superior Court (2020) 44 Cal. App. 5th 570, 585.

[6] Gordon v. Wolfe (1986) 179 Cal. App. 3rd 162, 167.

[7] Giuffre v. Sparks (1990) 76 Cal. App. 4th 1322, 1326, fn 3.

[8] Metis Development LLC v. Bohacek (2011) 200 Cal. App. 4th 1032, 1040. In re Marriage of Sellers (2003) 110 Cal. App. 4th 1007, 1010; Cal. Fam. Code §2127, the court must provide a Statement of Decision where it has resolved controverted factual evidence. In re Marriage of Varner (1997) 55 Cal. App. 4th 128, 135.

[9] Cal. Fam. Code §§3022.3 trial of custody determination requires Statement of Decision pursuant to CCP §632. City & Cnty. of San Francisco v. H.H. (2022) 76 Cal. App. 5th 531, 544; Cal. Fam. Code §3654, Statement of Decision required following motion for reduction of spousal support on the request of either party.

[10] Slavin v. Borinstein (1995) 25 Cal. App. 4th 713, 718.

[11] In re Marriage of Arceneaux (1991) 51 Cal. 3d 1130, 1136-38.

[12] Gordon v. Wolfe (1986) 179 Cal. App. 3rd 162, 168.

[13] Michael U. v. Jamie B. (1985) 39 Cal. 3rd 787, 793.

[14] Miramar Hotel Corp v. Frank B. Hall & Co. (1985 163 Cal. App. 3rd 1126, 1129.

[15] The court may issue a Statement of Decision sua sponte. Ochoa v. Anaheim city School District (2017) 1 Cal. App. 5th 209, 235; CRC 3.1590(m)

[16] CRC §632 “upon the request of any party”

[17] CCP §632; CRC 3.1590(n)

[18] Atl. Richfield Co. v. California Reg'l Water Quality Control Bd. (2022) 85 Cal. App. 5th 338, 356.) CRC 2.900(a).

[19] CRC 2.900(a)

[20] CCP §632.

[21] CCP §632.

[22] Staten v. Heale (1997) 57 Cal. App. 4th 1084.

[23] Whittington v. McKinney (1991) 234 Cal. App. 3d 123, 126.

[24] CCP §632; CRC 3.1590(d); In re Conservatorship of Hume (2006) 140 Cal. App. 4th 1385, 1394.

[25] CRC 3.1590(n).

[26] In re Marriage of Hafferkamp (1998) 61 Cal. App. 4th 789, 794; Horning v. Shilberg (2005) 130 Cal. App. 4th 197, 203. (CRC 3.1590(a))

[27] Ehrler v. Ehrler (1981) 126 Cal. App. 3rd 147, 152–153)

[28] CRC 3.1590(c)(1)

[29] CRC 3.1590(c)(2), (3)

[30] McAdams v. McElroy (1976) 62 Cal. App. 3d 985, 994.

[31] CRC 3.1590(g).

[32] CRC 3.1590(b).

[33] Miramar Hotel Corp. v. Frank b. Hall & Co. (1985) 163 Cal. App. 3rd 126, 1129.

[34] Wurzl v. Holloway (1996) 46 Cal. app. 4th 1740, 1756.

[35] Vukovich v. Radulovich (1991) 235 Cal. App. 3rd 281, 295.

[36] Ribakoff v. City of Long Beach (2018) 27 Cal. App. 5th 150, 163; Cheema v. LS Trucking, Inc. (2019) 39 Cal. App. 5th 1142, 1152.

[37] Ribakoff, supra.

[38] A request for Statement of Decision made orally before the close of argument, does not involve this procedure.

[39] CCP §632 and CRC 3.1590(e)

[40] CRC 3.1590(f)

[41] CRC 3.1590(g)

[42] Beggerly v. Gbur (1980) 112 Cal. App. 3rd 180, 192.) Failure to timely object forfeits the opportunity to do so.

[43] CCP §634.

[44] Miramar Hotel, supra, 163 Cal.App. 3rd at p. 1129.

[45] Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 498.

[46] CCP §632. Miramar Hotel, supra, 163 Cal.App. 3rd at p. 1129.

[47] CCP §§ 632, 664; CRC 3.1590(k)

[48] Bay World Trading, Ltd. v. Nebraska Beef, Inc., (2002) 101 Cal. App. 4th 135, 141. (2002) 101 Cal. App. 4th 135, 141.

[49] Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal. App. 5th 982, 996.

[50] CRC 3.1590(m)