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Randall v. Mousseau Summary

 

Opinion published August 4, 2016

 

Factual Background

 

Randall v. Mousseau involved a breach of contract claim between Wendy Randall and Geoffrey Mousseau.  The case was tried before the trial court without the assistance of a court reporter.  The trial court found in favor of the defendant, Geoffrey.  Wendy’s subsequent motions for new trial and JNOV were denied.  Wendy then filed a motion for settled statement in lieu of a reporter’s transcript to prosecute her appeal.  Geoffrey responded Wendy was not entitled to settled statement because it was her decision not to hire a court reporter for the trial and subsequent proceedings.

 

Trial Court’s Order

 

The trial court denied Wendy’s request for settled statement.  The court found the request placed an undue burden both on the court and Geoffrey to review and respond to the motion. Moreover, the minute orders generated in the case provided sufficient information to pursue an appeal. 

 

Decision on Appeal

 

Interestingly enough, the Court of Appeal noted Wendy failed to argue before the Court of Appeal the trial court erred when it failed to settle the record.  The lack of any argument on the issue resulted in forfeiture / waiver.  Nevertheless, even though neither party briefed the potential error, the Court of Appeal decided to examine the issue for public policy reasons since it was likely to recur.  

The Court of Appeal first recounted a party has a right to a settled statement in absence of a reporter’s transcript.  To make a motion the party must, among other requirements, show the statement can be settled without significantly burdening the opposing parties or the court.  While the trial court retained some discretion, its primary job was to insure an adequate record.  Here, the trial court stated there was a burden to court and opposing counsel, however no reasons were given.  Moreover, the expenditure of court’s and litigants’ time was contemplated by the rules of court.  A burden must be “significant” before a court finds it cannot settle the statement.  The record before the court did not disclose any such burden. 

 

In the end, however, the Court of Appeal affirmed since Wendy forfeited any reversal in her favor for failure to brief the trial court’s refusal to settle the statement

Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement.  Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement .  Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period.  The articles on this website are not legal advice and should not be used in lieu of an attorney.  The accuracy of articles and information on this site cannot be relied upon.

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Dennis Temko, Esq.

Law Office of Stephen Temko
750 "B" Street Suite 2100
San Diego CA, 92101

 

 

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Dennis Temko was recognized as a “Rising Star” in 2017 by Super Lawyers, a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

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