Error in failing to issue statement of decision not reversible per se

A much-respected family law judge once told me that it was not hard for him to decide emotional issues because, "these people need a decision to get on with their lives; it does not matter as much what I decide as that I decide."

So it was with the question the Supreme Court decided in F.P. v. Monier, 2017 DJDAR 11149 (Nov. 27, 2017): "Is a trial court's error in failing to issue a statement of decision upon a timely request reversible per se?" The bench and bar needed a decision, and they got one: "[A] trial court's error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review."

How Did We Get Here?

The opinion says that the trial court's duty to explain the factual and legal bases of its decision "reflects many years of statutory evolution." Like so many recent Supreme Court decisions that focus on history, F.P. painstakingly traces the statutory evolution of Code of Civil Procedure Section 632, beginning with the 1851 Practice Act, progressing through 1968 when the current version "began to take shape," and continuing through 2017. The court summarized: "[E]xcept between 1872 and 1874, when the predecessor statute said that 'the action must again be tried'" if the trial court failed to timely file its decision, the statutes directing preparation of statements of decision, "have not specified the consequences of noncompliance. They have, however, at times expressly precluded reversal for a failure to make findings if the appealing party did not object to the failure in the trial court or file a written request for findings."

Also, F.P. stresses, California law has not allowed reversal for civil trial errors absent prejudice since the 1851 Practice Act. The prejudicial error requirement became part of the California Constitution in 1911, and now appears in Article 6, Section 13, which precludes reversal for procedural error unless the reviewing court, "shall be of the opinion that the error complained of has resulted in a miscarriage of justice." In this connection, F.P. reprises the Supreme Court's comment in Soule v. General Motors, 8 Cal. 4th 548, 580 (1994), that, "[n]o form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party."

History Without Policy

The Supreme Court recognized that there was a split in authority; many of its past decisions suggesting that automatic reversal was required when a trial court failed to prepare a statement of decision that a party requested, while other decisions required a showing of prejudice. Yet in choosing to follow the harmless error line of cases, F.P. does not discuss any of these policy reasons for making the opposite choice:

• A statement of decision forces the trial court to think through its reasoning, given that, "[m]isconceptions and oversights of fact and law are discovered in the process of writing." Baker, "A Review of Corpus Juris Humorous," 24 Tex. Tech. L.Rev. 869, 873 (1993). This is particularly important because the decision in a court trial is the decision of a single person without the back-and-forth of 12 people on a jury.

• A statement of decision facilitates appellate review by sparing Courts of Appeal the task of reexamining the entire record to assess prejudice when the requested statement of decision focuses on only a limited issue.

• A written explanation of the facts may: delineate the collateral estoppel reach of a decision; serve as a guideline for setting future policies; and govern ongoing relationships between the parties.

• A statement of decision promotes transparency, helping the public to determine whether the law needs revision, whether the court is doing its job, and whether a particular judge is competent.

• A statement of decision focuses appellate inquiry so there is no speculation about the trial court's reasoning. Years ago the Supreme Court recognized that without the "roadsigns" that findings of fact provide, "a reviewing court would be forced into unguided and resource-consuming explorations." Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506, 516 (1974).

The F.P. decision probably will not much change the way we litigate civil cases. But lawyers and judges should be on guard for the detrimental effects of ignoring those policy considerations, and propose legislative fixes if it turns out applying the harmless error test to the statement of decision process harms our legal system.

Wendy Lascher is the principal author of the American Academy of Appellate Lawyer's amicus curiae brief in F.P. v. Monier, though the views expressed in this article are her own.