Metropolitan News-Enterprise


Wednesday, August 11, 2004


Page 3


Judge’s Tardy Statement of Decision Was Harmless, C.A. Rules


By a MetNews Staff Writer


A trial judge’s failure to timely file a statement of decision after a bench trial in a medical malpractice case was harmless in view of the plaintiff’s “strategic decision” not to submit a reporter’s transcript on appeal, this district’s Court of Appeal ruled yesterday.

The unpublished opinion by Presiding Justice Paul Turner of Div. Five drew a dissent from Justice Richard M. Mosk, who argued the failure to comply with Code of Civil Procedure Sec. 632 “constituted per se reversible error.”

That code section requires a statement of decision after a bench trial lasting more than a day if a party requests it “within 10 days after the court announces a tentative decision.”

Los Angeles Superior Court Judge Daniel S. Pratt tried the case from Jan. 6 to Jan. 29, 2003. On March 20, 2003 he filed a brief “Judgment After Court Trial” stating that the plaintiff had “known complications” from her surgery but failed to establish “by a preponderance of the evidence that the operation or aftercare were below the standard of care.” 

Defense counsel served a notice of entry of judgment on March 27.

The plaintiff requested a statement of decision on April 1, stating in the request that she was “assuming” the purported judgment was the tentative decision mentioned in Sec. 632. She also objected to the notice of entry of judgment as a violation of her rights under that provision.

Pratt ordered defense counsel to prepare a statement of decision, but it was not filed until July 15—two months after the plaintiff filed her notice of appeal.

The plaintiff’s decision not to designate a reporter’s transcript as part of the record on appeal had “profoundly far reaching” consequences, Turner declared. Among them, he said, was that she was unable “to demonstrate any prejudice from the belated filing of the statement of decision,” which he described as “entirely harmless.”

Citing Maria P. v. Riles (1987) 43 Cal.3d 1281 and other cases, Turner said the inadequacy of the appellate record required affirming Pratt’s judgment on the merits.

“In the absence of a reporter’s transcript,” Turner explained, “it is presumed that the evidence adduced at trial would support the judgment and demonstrate an absence of error….”

If the appeals court were to reverse based on the fact the statement of decision was untimely, Pratt would merely have to refile it, Turner said, adding:

“Our decision on the merits of the appeal would be entitled to res judicata effect….In a subsequent appeal, we would be required to required to affirm the judgment.  Appellate courts do not engage in such idle acts.”

Justice Margaret Grignon concurred, but Mosk said the merits of Pratt’s verdict were not before the court.

“[P]laintiff in this appeal raised a single issue—the failure of the trial court to file a statement of decision—and thus our review must be limited to that issue,” Mosk wrote. “Moreover, if we reversed on that issue and remanded the case, our decision would not constitute a final judgment on the merits, because we would order further action to be taken, culminating in the entry of a judgment from which plaintiff could appeal.”

Pratt lacked jurisdiction to issue a statement of decision after the notice of appeal was filed, Mosk said, commenting that “issuing a statement of decision that did not exist until four months after judgment was entered, or two months after an appeal was taken, cannot be considered a correction of a clerical error.” He cited Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, a case in which the court called it “vitally important” that a statement of decision be prepared following the procedure required by the statute and court rules.

“The point of a statement of decision is to make sure the trial court justifies its decision, and preparing the statement of decision could affect the trial court’s ultimate decision,” Mosk argued. “When a trial court enters judgment without issuing a statement of decision when one is timely requested, the court commits per se reversible error.”

Since the Sec. 632 violation required reversal, the absence of a reporter’s transcript was “irrelevant,” the dissenting jurist asserted. The plaintiff should not have been required to show prejudice, he said, but he added there was “ample evidence of prejudice in this case.”

“The trial court’s failure to follow the correct procedure for issuing a statement of decision deprived plaintiff of an opportunity to object to defendants’ proposed statement of decision and possibly obtain a hearing on those objections,” Mosk declared.

He pointed out that though the defendants designated a statement of decision as part of the appellate record, they described it as “to be filed” five days later.

“[B]ecause the statement of decision did not exist at the time plaintiff designated the record on appeal, plaintiff had no reason to, and did not, designate a record sufficient to allow her to challenge the judgment on the merits because she was entitled to per se reversal for the trial court’s failure to issue a statement of decision,” Mosk reasoned. “That a signed statement of decision ultimately was included in the record on appeal—because the defendants improperly designated a document that was not yet in existence—does not justify depriving plaintiff of the opportunity to challenge the judgment on the merits.”

Torrance attorney Daniel M. Graham represented the plaintiff. The defendants were represented on appeal by James J. Kjar of Reback, McAndrews & Kjar in Manhattan Beach.

The case is Simmons v. Fobi, B167678.


Copyright 2004, Metropolitan News Company