Tuesday, July 28, 2020

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Court of Appeal:

Request for Statement of Decision Not ‘Made’ Unless Clerk’s Office Sends Notice of Filing

By a MetNews Staff Writer

The requirement that a request be “made” for a statement of decision within 10 days of the judge’s tentative decision following a trial lasting more than eight hours was not met where a party electronically submitted such a request, which the Clerk’s Office acknowledged receiving, but which was not filed, the Court of Appeal for this district held yesterday.

According to the unpublished opinion, the request was not filed “for unknown reasons.” But because it was not filed, the opinion sets forth, cognizance cannot be taken of it having been “made.”

Los Angeles Court Judge Timothy P. Dillon, sitting on assignment to Div. Seven, authored the opinion. It affirms an $80,000 judgment by Los Angeles Superior Court Judge Gregory Keosian in favor of Alex Meseonzhnik who was sued on a promissory note.

No Filing Notice

Defendant Vsevolod Dovzhenko’s contention that he was entitled to a statement of decision fails, Dillon declared, because although he was sent an electronic notice that his request had been received, he produced no subsequent notice of a filing.

Meseonzhnik contended that the bench trial had consumed less than eight hours—in which event the request for a statement of decision would have to have been made before the matter was submitted on Jan. 25, 2019—and Dovzhenko insisted the trial lasted longer than eight hours. It doesn’t matter who was right on that point, Dillon said, “because Dovzhenko has not shown that he timely made a request for a statement of decision regardless of the trial’s length.”

Dillon’s opinion affirms the judgment in favor of the plaintiff, as well as an order denying a motion to vacate it based on the lack of a statement of decision.

Keosian’s Impression

From the proposed judgment Keosian signed on Feb. 26, 2019, it appears that the trial judge was of the view that the trial had lasted less than eight hours and that a request for statement of decision would have to have been made on or before Jan. 25. He said:

“A statement of decision being not being requested pursuant to CCP 632 and CRC 3.1590, the court, upon a trial on the merits, after hearing testimony of both Plaintiff and Defendant- and on a review of the evidence submitted, and on the arguments of counsel, finds for Plaintiff and against Defendant in the amount of $80,000 with interest, as well as costs and fees pursuant to the promissory note.

“Parties may within 10 days after service of this proposed judgment, serve and file objections thereto.”

On March 8, 2019, Dovzhenko served and filed both an objection to the proposed judgment, saying it was premature, and a “Request for a Statement of Decision,” treating the proposed judgment as a tentative decision.

Statute, Court Rule

Code of Civil Procedure §632 provides that a request for a statement of decision “must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.”

California Rules of Court, rule 3.1590 says:

“Within 10 days after announcement or service of the tentative decision, whichever is later, any party that appeared at trial may request a statement of decision to address the principal controverted issues.”

Although the statute and the rule allude to the time within which a request is to be made, rather than “filed,” Dillon pointed to California Rules of Court, rule 2.259(a)(4), relating to electronic filing, which sets forth:

“In the absence of the court’s confirmation of receipt and filing, there is no presumption that the court received and filed the document.”

The rule adds:

“The electronic filer is responsible for verifying that the court received and filed any document that the electronic filer submitted to the court electronically.”

Dillon’s Reasoning

Dillon wrote:

“Dovzhenko contends that he made a request for a statement of decision through his March 8 submission on the trial court’s electronic filing system. However, Dovzhenko has failed to show that he filed a request for a statement of decision with the trial court within the 10-day period required by section 632 for a trial greater than eight hours. Although Dovzhenko electronically submitted a request for filing through the court’s electronic filing system, there was no indication that the document had been filed.”

He noted:

“There is nothing in the record to suggest that, at the time the trial court entered the March 13, 2019 judgment in favor of Meseonzhnik, the court was aware that Dovzhenko had tried, but failed, to file a request for a statement of decision.”

The jurist added:

“Given that the absence of the court’s filing confirmation, under rule 2.259(a)(4), there was no presumption that Dovzhenko filed the request. Further, under rule 2.259(a)(4), Dovzhenko was responsible for verifying that the court filed the request he had submitted. Under these circumstances, Dovzhenko has not shown that he timely made his request for a statement of decision within the 10-day statutory period. Because Dovzhenko’s request was untimely, the trial court was not required to issue a statement of decision.”

Implied, Express Findings

Dillon said the court “need not decide whether Dovzhenko established that the duration of the trial was eight hours.” Accordingly, the opinion does did not discuss whether the case could be resolved based on Keosian’s implied finding on Feb. 26, 2019 that the trial was not of that length and it was presently too late to request a statement of decision.

The opinion does not make mention of Keosian’s express finding on Oct. 31, 2019, in ruling on Dovshenko’s request for a statement of decision, that the trial had lasted less than eight hours. He said:

“This matter was tried over the course of three days over a total of 7.35 hours. The matter was submitted at 12 noon on January 25, 2018. A statement of decision was not requested prior to submission of the case. Defendant’s request is therefore DENIED.”

The case is Meseonzhnik v. Dovzhenko, B297633.

Michael M. Baranov of the Century City law office of Baranov & Wittenberg represented Dovzhenko and Robert Gentino and Sherri Matta of the Hollywood Hills Law Office of Robert Gentino served as counsel for Meseonzhnik.