The Doctrine of Implied What?

From the Memorandum of Intended Decision to the Statement of Decision and Appeal

The long, drawn-out process of completing a hearing on property division, domestic violence, permanent spousal and child support under Family Code § 217(a) is complete. The matter is submitted. The parties await the decision from the trial court. While, after all the time and effort and discovery and expense, the end of the case seems near, the case is only ending one stage and beginning another: statement of decision, which takes counsel and litigants from the trial court’s tentative decision to judgment, and perhaps to appeal. The steps the parties and counsel take next may significantly affect their chances to preserve their hard-earned success through statement of decision and into appeal, or to reduce or reverse the defects in the court’s ruling in the trial court and on appeal.

The statement of decision stage begins with the tentative decision. The trial court can issue its tentative decision two ways: in open court entered in the minutes or by written statement to the clerk, which the clerk must promptly serve on all parties who appeared in the matter. California Rule of Court 3.1590(a). The tentative decision or memorandum of intended decision is not a judgment and is not binding on the trial court. Rule 3.1590(b). The trial court’s tentative decision may illustrate the trial court’s theory but cannot be used “to impeach the order or judgment.” Marriage of Ditto (1988) 206 Cal.App.3d 643, 646.

The statement of decision and judgment, not the tentative or memorandum of intended decision, represent the final decision of the trial court. Ditto, 206 Cal.App.3d at 646-647. Therefore, the trial court is not bound by its tentative decision and can enter a statement of decision and judgment wholly different from that initially announced by the trial court. Ditto, supra. The concept derives from the time-honored principle that appellate courts are concerned with the correctness of the decision and judgment, not with the reasoning. An appealed judgment will be affirmed if it is correct on any theory, even if different from that asserted by the trial court, even if it was not raised in the trial court. Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330.

Rule of Court 3.1590(c) sets forth two instances in which a tentative decision takes on more lasting impact: Rule 3.1590(c)(1) allows a trial court in its tentative decision to state that the tentative decision is the court’s proposed statement of decision subject to a party’s objection under Rule 3.1590(g); Rule 3.1590(c)(4) allows the trial court to direct in its tentative decision that the tentative decision will become the statement of decision, unless, within 10 days of announcement or service of the tentative decision, a party specifies controverted issues as to which the party seeks a statement of decision or makes proposals not included within the tentative decision.1

A statement of decision explains the factual and legal basis for the trial court’s decision for each of the principal controverted issues at trial. California Code of Civil Procedure §632. It is “at least as much, if not more, for the benefit of the appellate court as for the trial court.” In re Marriage of Sellers (2003)110 Cal.App.4th 1007, 1010.2 While a “trial court’s failure to provide the factual and legal basis for its decision on a principal, controverted issue” is used to comprise reversible error, (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282) showing harmful error is now required to trigger reversal for a trial court’s failure to do so. F.P. v. Monier (2017) 3 Cal.5th 1099, 1108.

If timely requested, the statement must be in writing, unless the parties at trial agree otherwise, or if the trial concludes within one calendar day or less than eight hours over more than one day, in which case the statement may be made orally in the presence of the parties. CCP §632. To be timely requested, a party must seek a statement of decision within ten days after the trial court announces or serves its tentative decision. If the trial lasts less than one calendar day or less than eight hours over more than one day, the request must be made before submission of the matter for decision. CCP §632.

The party requesting the statement must specify the controverted issues for which it requests a statement. CCP §632; Rule 3.1590(d). Here, “controverted issues” mean “ultimate facts” rather than “evidentiary facts.” Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559. An “ultimate fact” refers to an essential element of a claim or defense, without which that claim or defense must fail. Yield Dynamics, supra.3

Failing to request an adequate statement of decision, or none at all, can be disastrous for counsel and litigants. In Marriage of Ditto, as cited above, the appellant failed to request a statement of decision and none was rendered. Instead, appellant relied on the memorandum of intended decision to show error. Ditto, 206 Cal.App.3d at 646. The court held that appellant could not rely on the memorandum of intended decision.

Failing to timely request a statement of decision triggers severe consequences. If a party fails to timely request a statement of decision, then the appellate court will apply the doctrine of implied findings, i.e., infer that the trial court made all necessary findings to support the judgment. In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133. This doctrine “is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” Fladboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.

Timely requesting a statement of decision is the first of a two-step process to avoid the doctrine of implied findings. The second step arises if the statement of decision includes any misstatements or omits any controverted issues. In that instance, the party seeking to avoid the doctrine and to use the statement of decision as a basis for reversal must either file objections to such deficiencies or file either a motion for new trial under CCP §657 or a motion to vacate and enter a different judgment under CCP §663. CCP §634; Arceneaux, supra, 51 Cal.3d at 1133-1134. The deadline to timely object is 15 days following service of the proposed statement of decision. Rule of Court 3.1590(g).4

If a litigant fails to timely file such objections then once again, the doctrine of implied findings will apply to imply all necessary findings to support the decision as to the statement’s deficiencies. Arceneaux, 51 Cal.3d at 1133-1134.5 When the doctrine of implied findings applies, an appellant must show that there is no substantial evidence to support the judgment. Fladboe, 150 Cal.App.4th at 60. The substantial evidence standard presents a “daunting burden” for an appellant seeking reversal of a factual determination made in the trial court. Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.

A party seeking to challenge an unfavorable result following trial or other core family law evidentiary hearings set forth in Family Code § 217 therefore must carefully follow these post-trial procedures lest their path to a successful appeal becomes far more difficult, if not impossible, to overcome.


[1] Otherwise, the trial court in its tentative decision will indicate that the trial court will either prepare the statement of decision under Rule 3.1590(c)(2) or direct a party to prepare the statement of decision. Rule 3.1590(c)(3).

[2] Family Code § 210 states that: “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally,…apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

[3] People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509 represents an extreme example of seeking too much information in the statement of decision. In Casa Blanca, the defendant nursing home made 16 demands, each with several subparts, totaling over 75 questions on evidentiary facts on issues not at stake in the pleadings. Casa Blanca, 159 Cal.App.3d at 525. The appellate court described the nursing home’s request as “seeking an inquisition, a rehearing of the evidence,” and found that the trial court was not required to provide specific answers “so long as the findings in the statement of decision fairly disclose the court’s determination of all material issues.” Casa Blanca, supra.

[4] Under CCP §1013(a), the 15-day deadline for filing an objection is extended by five (5) days if the proposed statement was mailed. However, there is no 5-day extension under CCP §1013(a) for filing a new trial motion or motion to vacate and enter different judgment under CCP §§657, 663. CCP §1013(a).

[5] Failure to object to a defective statement of decision under CCP §634 does not comprise a waiver when a legal error appears on the face of the statement and the litigant fails to respond to it. United Services Auto Assn. v. Dalrymple (1991) 234 Cal.App.3d 182, 186. In those instances, there is no omission nor ambiguity, no “findings,” just a legal conclusion subject to challenge. Dalrymple, 234 Cal.App.3d at 186.