Broken Record Exhortation

Today’s example of my “sounds like a broken appellate record” exhortation comes from In re Marriage of Caballero and Dearcia (Sept. 13, 2017, D071399) [nonpub. opn.] in which the appellant first designated reporter’s transcripts of two hearings but then received a notice they had not been reported, which notice also informed him of the alternate agreed statement or settled statement procedure.  However, the appellant did not pursue those alternatives.  The Court of Appeal reiterated the refrain that failure to provide the record — even in the alternative format — requires the Court to conclusively presume the judgment is correct as to all evidentiary matters, meaning no argument as to sufficiency of the evidence is permitted.

However, the appellant sought to avoid this predicament by arguing he had been denied due process by the combination of lack of a reporter and the lack of detail in the judgment.  Not so, explained the Court as the superior court website “provides extensive information on how to obtain a court reporter,” and he was advised of the alternatives.  As for the “lack of detail” claim, the judgment contained all the information necessary to affirm it, as it referenced a statute and contained a factual finding.

So, if you don’t have a reporter, be sure and pursue the alternatives.  Better yet, pay the money to have a reporter present, as the money spend on the reporter is far less than what it will cost to go through the onerous and costly settled statement procedure, even for the shortest hearing.

http://www.courts.ca.gov/opinions/nonpub/D069596.PDF