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Why you should not file a judgment roll appeal

On Behalf of | Aug 16, 2018 | appellate law

The California Rules of Court allow an appellant (i.e., the person appealing the judgment or order) to appeal on what is known as a judgment roll; however, doing so would be a big mistake, because, although the costs of a judgment roll appeal are less, the standard for prevailing on a judgment roll appeal is very difficult. For this reason, filing a judgment roll appeal is strongly discouraged. At Kashfian & Kashfian, LLP, we have experience with filing appeals, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.

A judgment roll appeal is an appeal, where transcript of what transpired in the trial court (which is known as the reporter’s transcript) is not attached to the record before the reviewing court. (In re Larson’s Estate (1949) 92 Cal.App.2d 267, 269 (Larson’s Estate)). “On such an appeal the power of the reviewing court is necessarily restricted.” (Gin S. Chow v. Santa Barbara (1933) 217 Cal. 673, 680 (Chow).) The judgment roll only consists of “the pleadings, all orders striking out any pleading in whole or in part, a copy of the verdict of the jury, the statement of decision of the court, or finding of the referee, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment.” (Code Civ. Proc., § 670, subd. (b).)

Moreover, in a judgment roll appeal, “every presumption and intendment is resolved in favor of the regularity of the proceedings in the trial court.” (Chow, supra, 217 Cal. at p. 680.) Indeed, the trial court’s “findings are conclusively presumed to be supported by the evidence” and “any ambiguity or inconsistency will be resolved in favor of sustaining the judgment.” (Ochoa v. McCush (1931) 213 Cal. 426, 430 (Ochoa).) “[I]t will be assumed, in support of the judgment, that all objections to evidence in support of the findings were waived.” (Crowther v. Metalite Mfg. Co. (1933) 133 Cal.App. 452, 455 (Crowther); Chow, supra, 217 Cal. at p. 681 [“it will be presumed that facts found not within the formal issues were supported by evidence introduced by the parties under stipulation or without objection.”].)

Furthermore, on a judgment roll appeal, the reviewing must presume the trial court’s judgment is correct, (People v. Giordano (2007) 42 Cal.4th 644, 666 (Giordano)), must adopt all inferences in favor of the judgment, (Brewer v. Simpson (1960) 53 Cal.2d 567, 583 (Brewer)), and must conclusively presume evidence was presented that is sufficient to support the trial court’s findings, (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler)). Given this restricted review, “the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment.” (Id.) In sum, this court’s review of a judgment roll appeal is limited to determining whether any error “appears on the face of the record,” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521 (Froehlich); Cal. Rules of Court, Rule 8.163), and “[t]he judgment may be reversed only upon some fatal error appearing on the face of the judgment-roll.” (Chow, supra, 217 Cal. at p. 680.)

Also, on a judgment roll appeal, the court must presume the trial court properly conformed the complaint to the evidence at trial. (Code Civ. Proc., §§ 469-470; see e.g., Gaffny v. Michaels (1925) 73 Cal.App. 151 (Gaffny); Crowther, supra, 133 Cal.App. 452.)

Gaffny, supra, 73 Cal.App. 151 is instructive on this point. There, the Court affirmed a judgment where the trial court found that “the stock was issued by the Santa Monica Soft Water Laundry instead of by the Santa Monica Soft Water Company, as alleged in the complaint.” (Id. at p. 156.) The Gaffny court reasoned that there was nothing in the judgment-roll “inconsistent with the further presumption that appellant did not object to such evidence on the ground of variance.” (Id.) As the Gaffny court explained,

The failure of a party to object to evidence upon the ground of variance between it and the allegations of his adversary’s pleading is a tacit admission that he is not misled by it to his prejudice in maintaining his action or defense on the merits. Indeed, his failure so to object, affords the best possible evidence that the variance has not misled him to his prejudice. A variance which does not mislead a party to his prejudice in maintaining his action or defense on the merits is not deemed to be material (Code Civ. Proc., [§] 469); and where the variance is not material the court may either direct the fact to be found according to the evidence, without amendment of the pleading, or it may order an immediate amendment (Code Civ. Proc., [§] 470).

(Gaffny, supra, 73 Cal.App. at pp. 156-57.)

Crowther, supra, 133 Cal.App. 452 is similarly instructive. There, although “the [trial court’s] findings [were] not strictly in accordance with the issues raised by the pleadings,” the Crowther court, nevertheless, affirmed the trial court’s findings, reasoning:

This appeal being before us upon the judgment-roll alone, we must presume that evidence was introduced which would support this finding, without any objection upon the part of defendant and appellant, and that the facts were treated by all parties as issues properly before the court at the trial.

(Crowther, supra, 133 Cal.App. at p. 455.)

Moreover, appellate law practice requires more than a rehashing of arguments made at trial. As one California Court of Appeals Court recognized,

We also observe that trial attorneys who prosecute their own appeals, such as appellant, may have “tunnel vision.” Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice. We suspect that had appellant done so they would have advised him not to pursue this appeal.

(Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.)

At Kashfian & Kashfian, LLP, we understand the characteristics that make a successful appellate attorney. We are dedicated to passionately presenting your case before any appellate court in the state of California, District of Columbia or in the federal system. We have also experience with filing appeals, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.

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