The Doctrine of Implied What?
From the Memorandum of Intended Decision to the Statement of Decision and Appeal by John Schreiber
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 hardearned 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. 20
MARCH 2021
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
