Winning Your Appeal at the Trial Court Level: Make a Record

Winning Your Appeal at the Trial Court Level:


Make a Record


“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

If it isn’t in the record it did not happen. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364; People v. Parriera (1965) 237 Cal.App.2d 275, 286 [“We cannot go outside of the record to ascertain alleged facts that are not stipulated to.”].)


To that point, evidence must actually be introduced at trial. Merely introducing evidence on a motion for summary judgment does not make it part of the trial record. (Postal Instant Press v. Sealy (1996) 43 Cal.App.4th 1704, 1707.) In addition, depositions, interrogatories, and admissions do not become evidence at trial until they are read into the record. (Estate of Doyle (1932) 126 Cal.App. 446; see also, Stonelight Tile, Inc. v. California Ins. Guarantee Assn. (2007) 150 Cal.App.4th 19, 34.) Also, remember that taking “judicial notice” of a document does not establish the truth of what is set forth in that document. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374; Williams v. Southern California Gas Co. (2009) 176 Cal.App.4th 591, 600.)


Please also do not forget that declarations must follow the rules of evidence. (Sanford v. Smith (1970) 11 Cal.App.3d 991, 998.) A declaration made on information and belief is inadmissible hearsay on appeal. (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204; Ancora-Citronelle v. Green (1974) 41 Cal.App.3d 146.) Declarations must state facts, not conclusions or arguments, and they must incorporate documents properly. (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107; L&B Real Estate v. Superior Court (1998) 67 Cal.App.4th 1342.) Ensure also that the declaration makes an affirmative showing of the witness’s personal knowledge.


In nearly every appeal, it is critical to have a reporter’s transcript. “Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)


Objections to Evidence: Objecting to evidence is required. (Cal. Evid. §353.) Make sure you object on all grounds that apply; failure to object on particular grounds waives the right to object on that ground. (People v. Holt (1997) 15 Cal.4th 619, 669; People v. Bury (1996) 41 Cal.App.4th 1194.) Also, make sure the judge rules on the objections. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.)


Motions in Limine: Be cautious about transforming a motion in limine into a mini-trial that attempts to exclude an unreasonable amount of evidence. Doing so subjects the case to a stricter standard of review on appeal. (Panico v. Truck Ins. Exch. (2001) 90 Cal.App.4th 1294, 1296.) Where your motion in limine has been denied, make sure you object to the introduction of evidence, again, during trial, as it is being introduced. The general rule is that unless the court makes a definitive ruling on a motion in limine on the record, your objection is not preserved, and you will need to object during trial and/or make an offer of proof as the case may be. (People v. Boyer (1989) 48 Cal.3d 247; Redwood Empire v. Gombos (2000) 82 Cal.App.4th 352.)