B. Presumption Of Correctness, Cal. Prac. Guide Civ. App. & Writs Ch.

8-B

Cal. Prac. Guide Civ. App. & Writs Ch. 8-B

California Practice Guide: Civil Appeals and Writs
Jon B. Eisenberg, Ellis J. Horvitz, and Justice Howard B. Wiener (Ret.)
Chapter 8. Scope And Limits Of Appellate Review
B. Presumption Of Correctness
1. [8:15] Statement of Presumption and Impact on Appellant: The most fundamental rule of
appellate review is that an appealed judgment or order is presumed to be correct.
All intendments and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. [Denham v. Super.Ct. (Marsh & Kidder) (1970) 2 C3d 557,
564, 86 CR 65, 69; see also Cahill v. San Diego Gas & Elec. Co. (2011) 194 CA4th 939, 956, 124 CR3d
78, 93; Winograd v. American Broadcasting Co. (1998) 68 CA4th 624, 631632, 80 CR2d 378, 382
(citing text)]
a. [8:16] Ambiguities favor affirmance: Appellate courts never speculate that trial court error
occurred. Any ambiguity in the record is resolved in favor of the appealed judgment or order.
(Similarly, in applying the substantial evidence rule, appellate courts will resolve all evidentiary
conflicts in favor of the respondent; see 8:57.)
b. Burden on appellant to demonstrate error
(1) [8:17] Adequate record: Appellant has the burden of overcoming the presumption of
correctness and, for this purpose, must provide an adequate appellate record demonstrating the
alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved
against appellant
c. [8:18] Comment: Because of the presumption of correctness, judgments and orders are
sometimes affirmed on the assumption the trial judge made a particular finding of fact or
decided an issue in a particular way, even though this may not actually have occurred. In
reviewing a judgment or order for error, appellate courts ordinarily must look to the trial
courts ruling, not at its reasons in support of that ruling (see 8:214 ff.)
2. [8:19] Sufficient Record Overcomes Presumption: Appellants meet their burden of overcoming
the presumption of correctness by providing the court of appeal with an adequate record that states what
was done by the trial court and demonstrates error
For example, a record demonstrating that the trial court failed to perform its function of weighing
evidence or failed to exercise its discretion in making a discretionary ruling overcomes the presumption
of correctness and warrants a reversal on appeal. [Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007)
146 CA4th 1474, 1477, 53 CR3d 673, 675reversal where minute order and reporters transcript
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B. Presumption Of Correctness, Cal. Prac. Guide Civ. App. & Writs Ch. 8-B

demonstrated trial court never engaged in the process of weighing the evidence; Gardner v. Super.Ct.
(Statt) (1986) 182 CA3d 335, 338340, 227 CR 78, 7981reversal for failure to exercise informed
discretion in setting aside default]
=> [8:20] PRACTICE POINTER: The presumption of correctness makes it crucial for trial counsel
to make sure when an error occurs that the record will adequately demonstrate the error.
In nonjury trials, counsel should timely request a statement of decision (below). Likewise, if the law
requires a ruling to be accompanied by a statement of reasons (in connection with certain orders
granting a new trial, see 8:219 ff.), counsel should promptly raise the point in the trial court.
As to other trial court rulings, it may be helpful to ask the trial judge to state for the record the
basis for the ruling (although some judges may be reluctant to do so, knowing they are less
likely to be reversed if they cloak the ruling in the presumption of correctness by saying
nothing).
If the error occurred during proceedings not taken down by a court reporter (e.g., in chambers),
counsel must take steps to ensure that those proceedings are subsequently described on the record
a. [8:22] Doctrine of implied findings if statement of decision waived: If the parties waived a
statement of decision (either by failure to request it or by requesting it too late), the appellate court
will presume that the trial court made all factual findings necessary to support the judgment for which
substantial evidence exists in the record; i.e., the necessary findings of ultimate facts will be implied
and the only issue on appeal is whether the implied findings are supported by substantial
evidence.
The 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.
Often, invoking the doctrine of implied findings will cause affirmance on appeal of a
judgment or order that otherwise might have been reversed! [See Marriage of Ditto (1988) 206
CA3d 643, 647, 253 CR 770, 772 (involving community property division and
reimbursement)judgment affirmed under doctrine of implied findings but appellate court noted
that, had there been a statement of decision showing the trial court error, it would have concluded that
trial court committed reversible error]

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2012 Thomson Reuters. No claim to original U.S.

2012 Thomson Reuters. No claim to original U.S. Government Works.