Your client lost in the trial court. Should you appeal? A key basis for appeal is that the trial court’s ruling on a question of fact was erroneous. Here’s how to go about identifying a factual determination that might form the basis of an appeal.
A question of fact is generally one that can be resolved only by considering conflicting evidence—if the issue requires the judge or jury to weigh one party’s proof against another’s, or consider the credibility of witnesses or other evidence, you’ve got a question of fact.
You’ve also got a question of fact when conflicting inferences can reasonably be drawn from undisputed evidence. An inference is a deduction of fact drawn from another fact or group of facts. Evid C §600.
Here’s a suggested way to identify a factual determination that might form the basis of an appeal:
define the material factual issues that the trial judge or jury had to resolve to make the challenged ruling or decision, and then
analyze all the evidence introduced on each of those factual issues to reach a conclusion about whether the evidence supported the ruling or decision.
Keep in mind that questions of fact can arise throughout a trial court proceeding. Although opinions usually discuss the concept of questions of fact in the context of reviewing evidence in support of the final judgment, many preliminary rulings can require a determination of fact. See, e.g., Smith v Adventist Health Sys./W. (2010) 182 CA4th 729, 738.
To identify key factual determinations made by the trial court
Request a statement of decision under CCP §632. The trial court’s statement of decision should show how it resolved all the material questions of fact, which its final judgment depends on. If the parties don’t request a statement of decision, the appellate court will assume that the trial court made whatever findings were necessary to sustain the judgment unless the trial court expressly refuses on the record to make a particular factual finding.
Seek trial court clarification of any omissions or ambiguities in a proposed statement of decision. Failure to do this risks waiver of your right to complain about such errors on appeal. CCP §634. See Marriage of Arceneaux (1990) 51 C3d 1130.
For help with analyzing the prospects for success on appeal, turn to CEB’s California Civil Appellate Practice, chapter 2A. To learn more about trial courts’ statements of decision, go to CEB’s California Trial Practice: Civil Procedure During Trial §§24.34-24.50. And anyone filing an appeal should check out CEB’s program Myron Moskovitz on Winning Appeals and Writs, available On Demand.
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