Opinion
G029401.
7-31-2003
In re Marriage of SATYA AND LAKSHMI REDDI. SATYA REDDI, Appellant, v. LAKSHMI REDDI, Respondent.
Law Offices of Brian G. Saylin and Brian G. Saylin for Appellant. Hughes & Sullivan, Lisa B. Hughes and Lisa M. Dellaripa for Respondent.
Husband raises a single issue on appeal: the trial judges denial of his request for a statement of decision. Husband made such a request after the trial court issued a very lengthy judgment addressing the factual and legal contentions of the case and after the court rejected Husbands detailed objections to a proposed judgment prepared by Wife. Because the trial judge has since died, we cannot reverse and remand for a new statement of decision; instead, a new trial would be required as well.
Admittedly, the trial court erred by issuing an oral tentative decision in its chambers, rather than placing its written tentative decision on the record. But Husband waived this objection when he filed his own proposed judgment based on the tentative, and when he filed objections and comments to Wifes proposed judgment. At a minimum, he should have requested a statement of decision in conjunction with such filings. It is too late to do so now.
I
Husband filed to dissolve his lengthy marriage. The evidentiary hearings before Judge Brown took eight court days, concluding on February 8, 2001 in an unreported session. Wifes counsel was directed to prepare a formal judgment "consistent with the courts rulings and orders made in chambers this date." Husbands counsel similarly understood that Wifes counsel "was going to prepare some kind of a proposed Judgment and thereafter we would have a discussion and meeting relating to that Judgment."
When Wife initially failed to produce a proposed judgment, Husband himself drafted a lengthy statement detailing the legal and factual bases for the courts ruling on the contested factual issues, which he filed on March 19, 2001. Wife served and filed her proposed judgment on March 26, 2001. On April 6, 2001, Husband served and filed detailed objections to Wifes proposed judgment.
Judge Brown reviewed the judgments submitted by both parties, and adopted and signed Wifes proposed judgment as the judgment of the court, after having made his own interlineations. On May 2, 2001, the clerk mailed a copy of the 13-page judgment to Husbands counsel, but sent it to the wrong address. Husbands counsel received a copy of the judgment on May 15, 2001. The next day, Husband filed a request for a statement of decision and a motion for new trial, but both were denied. In his ruling on the motion, Judge Brown stated that he "weighed all issues of credibility against [Husband]." Judge Brown died while this case was pending on appeal.
II
This one-issue appeal arises from the courts failure to issue a statement of decision, which is required, upon timely request, for all court trials lasting more than one day. (Code Civ. Proc., § 632.) Section 632 requires judges in court trials to 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 request of any party appearing at the trial.
The statement of decision is designed to show the losing party why an appeal would be futile, and to focus appellate review on the pertinent portions of the record underlying the trial courts determination of ultimate facts. It gives the trial court an opportunity to reconsider and change its mind before entry of the judgment, and it makes the case easily reviewable on appeal. (Whittington v. McKinney (1991) 234 Cal. App. 3d 123, 126-127, 285 Cal. Rptr. 586 ["The history, purpose and importance of a statement of decision are clear."].)
Unlike a new trial order, however, the preparation of a proposed statement of decision and judgment may be delegated to a party, and need not be prepared by the court. (Whittington v. McKinney, supra, 234 Cal. App. 3d at p. 129, fn. 5 ["The preparation of a statement of decision should place no extra burden on the trial courts. A party may be, and often should be, required to prepare the statement"]; Cal. Rules of Court, rule 232(a), (c).)
Parties have 10 days from the time the court announces a tentative decision to request a statement of decision. (Code Civ. Proc., § 632.) The tentative decision must be made on the record, and not in closed chambers proceedings. (Cal. Rules of Court, rule 232(a).) Rule 232 provides, "On the trial of a question of fact by the court, the court shall announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk. Unless the announcement is made in open court in the presence of all parties who appeared at the trial, the clerk shall forthwith mail to all parties who appeared at the trial a copy of the minute entry or written tentative decision." (Italics added.)
The failure to issue a timely requested statement of decision is reversible error provided "that there was evidence introduced as to such issue and the evidence was sufficient to sustain a finding in favor of the party complaining." (In re Marriage of Ananeh-Firempong (1990) 219 Cal. App. 3d 272, 282, 268 Cal. Rptr. 83, interior quotation marks omitted; see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) P 15:97, p. 15-18.)
Parties, however, may waive their statutory right to a statement of decision. (Whittington v. McKinney, supra, 234 Cal. App. 3d at pp. 129-130 [while appellant requested a statement of decision, he responded Uh-huh to courts suggestion that the entire reporters transcript would constitute the statement of decision]; see also Cal. Rules of Court, rule 232(e) ["If a statement of decision is not requested or has been waived . . . ."].) It cannot be reversible error - let alone reversible error per se - to refuse a statement of decision which is untimely or which has been waived. (Whittington v. McKinney, supra, 234 Cal. App. 3d at p. 130.)
Judge Brown issued his tentative decision on February 8, 2001 and designated that Wifes counsel prepare a formal judgment. However, Judge Brown erred in one very significant respect. Contrary to the requirements in California Rules of Court, Rule 232(a), he did not provide the parties with written notification of his tentative decision. Instead, he issued his tentative rulings in unreported proceedings on February 8, 2001 - a practice we have sharply criticized. (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 319-320 ["This case appears to have followed the all-too-common pattern in family law of lawyers disappearing into a judges chamber and emerging with the judges order, independent of any hearing or settlement. . . . [P] Unfortunately, when lawyers and the judge disappear into chambers and emerge with an order to confer on the parents, the impression created is not one of a fair and reasonable process. Rather, the impression is one of a decision that has been predetermined without a hearing."].)
There is nothing in the record indicating that Husband expressly waived the requirement for a written tentative decision during the February 8 hearing. There is no exception, as Wifes counsel seems to contend, for "the busy Family Law Court." If Husband waived this requirement during the hearings in chambers, such a waiver is not stated on the record. Here we apply one of the most fundamental principles of appellate practice: If it is not in the record, it does not exist.
But Husbands conduct following the February 8 hearing demonstrates his acquiescence in the courts issuance of a tentative opinion in chambers rather than on the record in open court. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [appellant waived inadequately noticed summary judgment where he filed opposition and appeared at the hearing]; In re Dakota S. (2000) 85 Cal.App.4th 494, 501 [appellant waived statutorily required preliminary assessment of foster parent as prospective guardian by failure to object].) Far from objecting to the lack of written notification, Husband filed his own proposed judgment, stating that "the Court . . . heard the matter as a contested Trial upon the dates previously set forth, and . . . made certain tentative decisions . . . ."
Several weeks later, Husband filed a 21-page written objections and comments on Wifes proposed judgment. In great detail he explained why "the Judgment submitted contains many erroneous and incorrect findings and leaves out many matters determined by the Court." He urged "that the Court consider the Judgment prepared by [Husband] which is a far more accurate statement of what took place than the purported Judgment submitted by [Wife]."
Despite these specific and pointed objections, Husband never objected to the absence of a written tentative decision, and he did not then request either a written tentative opinion or a statement of decision. Husband waived the statutory requirement of a written tentative decision when he filed documents pertaining to the proposed judgments based on the improperly issued February 8 tentative decision. Husbands actions prevented the trial court from avoiding or curing this error. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal. Rptr. 837, 588 P.2d 1261.) Husband has never explained why he waited until May 16 to request a statement of decision and to specify controverted issues. Husband cannot complain of the trial courts failure to follow the provisions of Rule 232 of the California Rules of Court pertaining to statements of decision where "neither side objected to this unorthodox procedure at the relevant time." (Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1149, italics added.)
Husbands submission of a proposed judgment (in March 2001) and his filing of detailed objections to Wifes proposed judgment (in April 2001) are at cross-purposes with his later demand (in May 2001) for a statement of decision. As Wife argues, "In effect, each party prepared, served, and submitted a proposed statement of decision and judgment to the court."
Our observations more than a decade ago in Whittington v. McKinney, supra, 234 Cal. App. 3d at p. 130 are equally applicable here: "At no time did appellants counsel object to the procedure or otherwise insist on his right to a written statement of decision. Accordingly, while we deplore the procedure adopted by the court, we reluctantly conclude the right to a written statement of decision was waived here."
III
We have discretion to overlook the implied waiver rule in the interests of justice. (See, e.g., Redevelopment Agency v. City of Berkeley (1978) 80 Cal. App. 3d 158, 167, 143 Cal. Rptr. 633.) But Judge Browns death precludes us from employing the relatively expeditious remedy of reversing and remanding for a new statement of decision by the same decisionmaker. (Raville v. Singh (1994) 25 Cal.App.4th 1127 [reversing judgment signed by presiding judge following death of trial judge; proposed statement of decision, dictated by trial judge before his death is not sufficient].) That is why we asked for additional briefing regarding whether Husband has been prejudiced.
Husband raises three arguments. First, Husband contends that he was deprived of the opportunity to alert the court to any errors, to obtain clarification and to ascertain the courts reasoning. Our review of the record shows, however, that Husband presented his objections to the trial court, not only in his proposed judgment, but also in his objections to Wifes proposed judgment. Husband also raised the same contentions in his unsuccessful motion for new trial.
Second, Husband claims that he has been "severely hampered" in this appeal because there is no record of the trial courts reasoning on particular disputed issues. According to Husband, "invoking the doctrine of implied findings will cause affirmance on appeal of a judgment or order that otherwise might have been reversed!" But Husband has never contended that the April 17 judgment is unsupported by the facts or the law, and he has not cited us to evidence in the record to sustain findings in his favor. (See In re Marriage of Ananeh-Firempong, supra, 219 Cal. App. 3d at p. 282.) Indeed, despite our request for further briefing, Husband has never argued that the court failed to make findings on a material issue, or that its findings are ambiguous or subject to legal errors. As Wife points out, "Appellants opening brief fails to address any of the Courts actual determinations of issues included within the Judgment and raises none of these issues on appeal, complaining only of procedural irregularities. No citation to the record as to errors or acts in abuse of discretion and no mention of the prejudice to Husband, if any, should the Judgment be affirmed."
Third, Husband claims that he would have exercised his peremptory challenge to remove Judge Brown had we reversed and remanded with directions to prepare a statement of decision. "It is therefore submitted that Husband could successfully prevent Judge Brown from issuing a Statement of Decision in any event." This is not a sufficient ground to establish prejudice. Husbands argument would eviscerate the doctrine of harmless error since prejudice (even for minor or trial errors) could always be established from appellants expressed intent to affidavit the trial judge on remand.
The judgment is affirmed. In the interests of justice, the parties shall each bear their own costs on appeal.
WE CONCUR: RYLAARSDAM, J. ARONSON, J. --------------- Notes: Wife provides one possible explanation for Husbands silence: "he did not take the opportunity to place his evidence on the record, but rather voluntarily made offers of proof to the trial judge in chambers. The burden is on husband to have an adequate record on his claims, hence he cannot be prejudiced due to the lack of record which he failed to create." As Wife further explains, "The attorneys also made offers of proof for remaining [disputed] issues, before the court in chambers, the court ruled on those items and ordered them to be incorporated into the Judgment. Again, husband chose not to present evidence on the record. Therefore, husband is not prejudiced due to his own omissions of evidence."