Supreme Court of California Justia
Docket No. S216566

F.P. v. Monier


Filed 11/27/17
IN THE SUPREME COURT OF CALIFORNIA
F.P.,
Plaintiff and Respondent,
S216566
v.
Ct.App. 3 C062329
JOSEPH MONIER,
Sacramento County
Defendant and Appellant.
Super. Ct. No. 06AS00671


Section 632 of the Code of Civil Procedure1 provides that “upon the trial of
a question of fact by the court,” the court “shall issue a statement of decision
explaining the factual and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party appearing at the trial.”
We granted review in this case to decide whether a court’s error in failing to issue
a statement of decision as this section requires is reversible per se. The Court of
Appeal held that such errors are not reversible per se, but are subject to harmless
error review. The court based its conclusion on article VI, section 13 of the
California Constitution (article VI, section 13), which provides: “No judgment
shall be set aside, or new trial granted, in any cause, on the ground of misdirection
of the jury, or of the improper admission or rejection of evidence, or for any error
as to any matter of pleading, or for any error as to any matter of procedure, unless,
1
All further unlabeled statutory references are to the Code of Civil
Procedure.
1

after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of
justice.” For reasons explained below, we agree with the Court of Appeal and
affirm its judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2006, plaintiff F.P. sued defendant Joseph Monier for acts of
sexual battery that defendant allegedly committed in 1990 and 1991, when
plaintiff was 10 years old and defendant was 17 years old. Plaintiff also sued
defendant’s parents for negligence, alleging that they had failed reasonably to care
for, supervise, direct, oversee, and protect her from defendant. Defendant filed an
answer denying the allegations and asserting in part that others were at fault and
that any liability should be apportioned among them.
Before trial, plaintiff settled her claim against defendant’s parents. The rest
of the action went to trial before the court. The evidence presented during that
trial showed, among other things, that plaintiff's father also sexually abused
plaintiff during the time period in question. Dr. Laurie Wiggen, a licensed clinical
psychologist who treated plaintiff from September 2005 until December 2007,
diagnosed plaintiff as having posttraumatic stress disorder and attributed it to the
traumas resulting from the molestations by her father and defendant. Dr. Wiggen
could not separate the harm done by defendant from that done by plaintiff’s father,
testifying that their conduct was “cumulatively impactful.” Dr. Eugene Roeder, a
licensed psychologist who evaluated plaintiff in July 2005, diagnosed plaintiff as
suffering from major depression, an anxiety disorder, and posttraumatic stress
disorder. Like Dr. Wiggen, Dr. Roeder could not distinguish the symptoms
defendant had caused from those plaintiff’s father had caused, but he testified that
the molestation by plaintiff’s father “was dramatically more traumatic than” the
molestation by defendant because plaintiff’s relationship with her father “was a
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much more central, basic relationship in her life” and “[h]er relationship with the
[defendant] was more tangential.”
The court issued a tentative decision on April 29, 2009, finding that
defendant had committed the alleged acts and that his conduct was a substantial
factor in causing plaintiff’s injuries. The court indicated its intent to award
damages in the amount of $305,096, consisting of $44,800 for lost income,
$10,296 for past and future medical expenses, and $250,000 for general
noneconomic damages. The court instructed plaintiff's counsel to prepare a
judgment. Later that day, defendant timely filed a request for a statement of
decision requesting, as relevant here, that the court set forth “the basis upon
which” it was awarding special damages, emotional distress damages, past and
future medical expenses, and lost wages.
On May 1, 2009, plaintiff’s counsel submitted a proposed judgment to the
court. In an accompanying declaration, counsel explained: (1) he faxed a copy of
the proposed judgment to defendant’s counsel after trial on April 29, 2009, and
was informed that defendant’s counsel was no longer at that number; (2) the next
day, April 30, he faxed a copy of the proposed judgment to the new fax number of
defendant’s counsel and left counsel a voicemail explaining that the trial judge,
who had been visiting, “needed” the proposed judgment reviewed and signed
“immediately” because the judge “was leaving Sacramento on May 1, 2009”; and
(3) he did not hear from defendant’s counsel and submitted the proposed judgment
to the court the next day, May 1, 2009.
On May 1, 2009, the court signed the judgment without issuing a separate
statement of decision. The judgment stated in relevant part: “After considering all
of the evidence and testimony presented at trial it is hereby adjudged, determined
and decreed that [defendant] molested his biological cousin, plaintiff [F.P.]
numerous times when she was ten years old, including acts of unlawful
penetration, sodomy, oral copulation of him and other lewd and lascivious acts.
The conduct of Defendant . . . is further found to be outrageous and a substantial
3

factor in causing injuries to the Plaintiff. Defendant took advantage of the
vulnerability of the Plaintiff due to her age. Plaintiff . . . was injured as a
proximate result of [defendant’s] sexual assaults of her causing her to incur past
and future medical/psychological treatment expenses of $10,296.00. Plaintiff lost
income as a proximate result of [defendant’s] sexual assaults of her in the amount
of $48,800.00.” The judgment ordered defendant to pay total damages of
$305,096.00, which included general damages of $250,000 and special damages of
$55,096.00.
Defendant appealed, arguing that the trial court had erred in failing to issue
a statement of decision and that the error was reversible per se. According to
defendant, without a statement of decision, it was unknown whether the trial court
had apportioned general damages as the law required. The Court of Appeal found
error, but disagreed that it was reversible per se. Article VI, section 13, the court
held, precludes reversal absent a showing that the trial court’s failure to issue a
statement of decision regarding the issues defendant had specified “resulted in a
miscarriage of justice.” The error here, the court found, did not result in a
miscarriage of justice because defendant had forfeited any right to apportionment
of damages by failing to raise the issue at trial. Thus, the court concluded, the
absence of a statement of decision on the issue of general noneconomic damages
was of no consequence.
We granted review, limiting the issue to whether “a trial court’s error in
failing to issue a statement of decision upon a timely request” is “reversible per
se.”2
DISCUSSION
The duty of a trial court in question here — to issue, upon the request of a
party appearing at a court trial of a question of fact, “a statement of decision
2
Given this limitation, we express no opinion regarding the Court of
Appeal’s conclusion that the error here was, in fact, harmless.
4

explaining the factual and legal basis for its decision as to each of the principal
controverted issues at trial” (§ 632) — reflects many years of statutory evolution.
In 1851, the Legislature enacted section 180 of the Practice Act, which provided
that “[u]pon the trial of an issue of fact by the Court, its decision shall be given in
writing, and filed with the clerk, within ten days after the trial took place. In
giving the decision, the facts found, and conclusions at law, shall be separately
stated. Judgment upon the decision shall be executed accordingly.” (Stats. 1851,
ch. 5, § 180, pp. 78-79.) Ten years later, the Legislature added a provision stating
that “[i]n cases tried by the court without a jury, no judgment shall be reversed for
want of a finding, or for a defective finding, of the facts, unless exceptions be
made in the court below to the finding, or to the want of a finding.” (Stats. 1861,
ch. 522, § 2, p. 589.) Five years after that, in 1866, the legislature combined these
provisions into a single section that provided: “Upon a trial of issue of fact by the
Court, judgment shall be entered in accordance with the finding of the Court, and
the finding, if required by either party, shall be reduced to writing and filed with
the Clerk. In the finding filed, the facts found and the conclusions of law shall be
separately stated. In such cases no judgment shall be reversed on appeal for want
of a finding in writing at the instance of any party who, at the time of the
submission of the cause, shall not have requested a finding in writing, and had
such request entered in the minutes of the Court . . . .” (Stats. 1865-1866, ch. 619,
§ 2, p. 844.
In 1872, when the Legislature enacted the Code of Civil Procedure, it
replaced these provisions with section 632 and former section 633. Section 632
provided: “Upon the trial of a question of fact by the Court, its decision must be
given in writing and filed with the Clerk within twenty days after the cause is
submitted for decision, and unless the decision is filed within that time the action
must again be tried.” Former section 633 provided: “In giving the decision, the
facts found and conclusions of law must be separately stated. Judgment upon the
decision must be entered accordingly.” (Repealed by Stats. 1933, ch. 744, § 198,
5

p. 1904.) Two years later, the Legislature amended section 632 by (1) extending
the time for filing the decision from 20 to 30 days, and (2) deleting the clause
stating that “the action must again be tried” if the decision was not filed within the
specified time. (Code Amendments 1873-1874, § 79, p. 312.
In 1933, the Legislature combined these separate provisions into a single
section 632, which provided in relevant part: “In superior courts and municipal
courts, upon the trial of a question of fact by the court, its decision must be given
in writing and filed with the clerk within thirty days after the cause is submitted
for decision. In giving the decision, the facts found and the conclusions of law
must be separately stated. . . . [¶] Judgment upon the decision must be entered
accordingly.” (Stats. 1933, ch. 744, § 105, p. 1876.) In 1959, the Legislature
added a sentence to the section stating that “[t]he statement of facts found shall
fairly disclose the court’s determination of all issues of fact in the case.” (Stats.
1959, ch. 637, § 1, p. 2613.
The Legislature next substantively revised the section in 1968. As here
relevant, the amended section provided: “In superior courts, upon [the] trial [of a
question of fact by the court,] the court shall announce its intended decision.
Within the time after such announcement permitted by rules of the Judicial
Council, any party appearing at the trial may request findings. Unless findings are
requested, the court shall not be required to make written findings and
conclusions. . . . [¶] . . . [¶] Where findings are required, they shall fairly disclose
the court’s determination of all issues of fact in the case.” (Stats. 1968, ch. 716,
§ 1, pp. 1417-1418.
The current version of section 632 began to take shape in 1981, when the
Legislature amended the statute to provide: “In superior . . . courts, . . . upon the
trial of a question of fact by the court, written findings of fact and conclusions of
law shall not be required. Upon the request of any party appearing at the trial,
made within 10 days after the court announces a tentative decision, . . . the court
shall issue a statement of decision explaining the factual and legal basis for its
6

decision as to each of the principal controverted issues at trial. The request for a
statement of decision shall specify those controverted issues as to which the party
is requesting a statement of decision. . . . [¶] The statement of decision shall be in
writing, unless the parties appearing at trial agree otherwise.” (Stats. 1981, ch.
900, § 1, p. 3425.
In 1998, the Legislature slightly reordered this language so that the statute
provided in relevant part, as it does today, as follows: “In superior . . . courts,
upon the trial of a question of fact by the court, written findings of fact and
conclusions of law shall not be required. The court shall issue a statement of
decision explaining the factual and legal basis for its decision as to each of the
principal controverted issues at trial upon the request of any party appearing at the
trial. The request must be made within 10 days after the court announces a
tentative decision . . . . The request for a statement of decision shall specify those
controverted issues as to which the party is requesting a statement of decision. . . .
[¶] The statement of decision shall be in writing, unless the parties appearing at
trial agree otherwise.” (Stats. 1998, ch. 931, § 84, p. 6442.
As this discussion demonstrates, except between 1872 and 1874, when
section 632 stated that “the action must again be tried” upon a trial court’s failure
to file its decision within the specified time, the statutes have not specified the
consequences of noncompliance. They have, however, at times expressly
precluded reversal for a failure to make findings if the appealing party did not
object to the failure in the trial court or file a written request for findings and have
it entered in the court’s minutes.
Moreover, at least since 1851, our generally applicable statutes have
precluded reversal for errors in civil cases absent prejudice. Section 71 of the
1851 Practice Act provided that “[t]he Court shall, in every stage of an action,
disregard any error or defect in the pleadings, or proceedings, which shall not
affect the substantial rights of the parties; and no judgment shall be reversed or
affected by reason of such error or defect.” (Stats. 1851, ch. 5, § 71, p. 61.) In
7

1872, the Practice Act provision became section 475, which initially provided:
“The Court must, in every stage of an action, disregard any error or defect in the
pleadings or proceedings which does not affect the substantial rights of the parties,
and no judgment shall be reversed or affected by reason of such error or defect.”
Since 1897, when the Legislature last amended it, section 475 has provided: “The
court must, in every stage of an action, disregard any error, improper ruling,
instruction, or defect, in the pleadings or proceedings which, in the opinion of said
court, does not affect the substantial rights of the parties. No judgment, decision,
or decree shall be reversed or affected by reason of any error, ruling, instruction,
or defect, unless it shall appear from the record that such error, ruling, instruction,
or defect was prejudicial, and also that by reason of such error, ruling, instruction,
or defect, the said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been probable if such
error, ruling, instruction, or defect had not occurred or existed. There shall be no
presumption that error is prejudicial, or that injury was done if error is shown.”
(Stats. 1897, ch. 47, § 1, p. 44.
More importantly, for over 100 years, the California Constitution has also
expressly precluded reversal absent prejudice. In 1911, California voters added
former article VI, section 4 ½ to the state Constitution, which provided: “No
judgment shall be set aside, or new trial granted in any criminal case on the ground
of misdirection of the jury or the improper admission or rejection of evidence, or
for error as to any matter of pleading or procedure, unless, after an examination
of the entire cause including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.” (Italics added.
Three years later, the voters expanded the provision’s reach to civil cases by
changing the phrase “in any criminal case” to “in any case.” (See Vallejo etc.
R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 553-554.) Since 1966, when
the constitution was reorganized, the provision has appeared as article VI, section
13, which states: “No judgment shall be set aside, or new trial granted, in any
8

cause, on the ground of misdirection of the jury, or of the improper admission or
rejection of evidence, or for any error as to any matter of pleading, or for any
error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.” (Italics added.
As we have explained, article VI, section 13 generally “prohibits a
reviewing court from setting aside a judgment due to trial court error unless it
finds the error prejudicial.” (People v. Chun (2009) 45 Cal.4th 1172, 1201.) The
section applies to both constitutional and nonconstitutional errors. (People v.
Cahill (1993) 5 Cal.4th 478, 501 (Cahill).) It “empower[s]” appellate courts “to
examine ‘the entire cause, including the evidence,’ ” and “require[s]” them “to
affirm the judgment, notwithstanding error, if error has not resulted ‘in a
miscarriage of justice.’ ” (People v. O’Bryan (1913) 165 Cal. 55, 64.) To be sure,
even under section 13, an error is reversible per se when it constitutes “a
‘ “structural [defect] in the . . . trial mechanism” ’ that defies evaluation for
harmlessness.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579 (Soule);
see People v. Anzalone (2013) 56 Cal.4th 545, 554 [“A structural error requires
per se reversal because it cannot be fairly determined how a trial would have been
resolved if the grave error had not occurred.”]; Sandquist v. Lebo Automotive, Inc.
(2016) 1 Cal.5th 233, 261 [finding error “reversible per se” because its “effects are
‘ “unmeasurable” ’ and ‘ “def[y] analysis by ‘harmless-error’ standards” ’ ”].) But
“[c]ategorization of an error as structural represents ‘the exception and not the
rule.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 178.) “[A] strong
presumption” exists against finding that an error falls within the structural
category, and “it will be the rare case” where an error — even “a constitutional
violation” — “will not be subject to harmless error analysis.” (Anzalone, supra, at
p. 554.
Based on these provisions, we agree with the Court of Appeal that a trial
court’s error in failing to issue a requested statement of decision is not reversible
9

per se, but is subject to harmless error review. Nothing in the language of section
632 as it now stands establishes a rule of automatic reversal, and nothing in the
statute’s legislative history suggests the Legislature intended the current statute to
have that effect. On the contrary, the statute’s evolution — specifically, the
deletion, after only two years, of language requiring that an action “again be tried”
for noncompliance — cuts against reading the statute in that manner. Thus, there
is no statutory directive to override section 475, which, as explained above,
precludes reversal absent prejudice. Nor is there any basis for construing section
632 to conflict with the constitutional mandate of article VI, section 13, which
precludes reversal “for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.”
Although in a particular case a trial court’s failure to issue a requested statement of
decision may amount to a structural defect in the trial mechanism that defies
evaluation for harmlessness, we cannot say this type of error “fall[s] into the rare
class of mistakes that are reversible per se.” (People v. Sivongxxay, supra, 3
Cal.5th 151, 180.
Defendant argues that, notwithstanding the relevant constitutional and
statutory provisions, a rule of automatic reversal is dictated by our precedents.
“This court,” he asserts, “has stated almost since statehood that a judgment must
be reversed for failure to provide required findings, and has restated the rule time
and again since” the adoption of section 475 in 1872, the extension of article VI,
section 4 ½ to civil cases in 1914, and the adoption of article VI, section 13 in
1966.
Defendant is correct that many of our decisions suggest a rule of automatic
reversal. For example, in possibly our first decision on the subject, after quoting
section 180 of the Practice Act, we reversed a judgment and remanded for a new
trial, stating: “We are of opinion that this law is not merely directory, and we have
no right to destroy or impair its efficacy. It is intended by it, that the decision of
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the Court shall be the basis of the judgment in the same manner as the verdict of a
jury; and it follows, that without such decision the judgment cannot stand.”
(Russel v. Armador (1852) 2 Cal. 305 (Russel).) Eighty-five years later, in 1937,
we stated that if “findings are necessary” under section 632 “and have not been
waived,” it “is undoubtedly the law” that a court’s “failure to make them
constitutes prejudicial and reversible error.” (Carpenter v. Pacific Mut. Life Ins.
Co. (1937) 10 Cal.2d 307, 326.
However, our decisions are not as uniform as defendant argues. In
McQuillan v. Donahue (1874) 49 Cal. 157, the trial court, in a bench trial, decided
the case “orally in favor of the plaintiff,” and “[n]o decision in writing was ever
given or filed.” The defendant moved for a new trial pursuant to section 632,
which stated at the time that “the action must again be tried” if the court failed to
file its decision within the specified time. The motion was denied, and the
defendant appealed, citing Russel. We affirmed, stating: “We are of opinion that
this provision of the statute is directory merely.” (McQuillan, at p. 158.) In
Gregory v. Gregory (1894) 102 Cal. 50, 51, the unsuccessful plaintiffs in a quiet
title action tried by the court sought reversal on the ground that “findings of fact
were not waived, and none were filed by the court below.” We rejected the claim,
citing the principle that “a judgment will not be reversed for want of a finding
upon a particular issue, where it is apparent that the omission in no way prejudiced
the appellant.” (Id. at p. 52.) In Gates v. McLean (1886) 70 Cal. 42, 46, we
explained: “It has been repeatedly held, that even when the [trial] court has
omitted to find upon a material issue, a new trial may be denied if on the evidence
the finding must have been adverse to the party asking the new trial. By parity of
reason, a new trial may be denied if a finding in favor of the party asking the new
trial (upon a particular issue) could not have changed the result.” (See Murphy v.
Bennett (1886) 68 Cal. 528, 530 [“There should be findings upon all the material
issues in the case, but a judgment will not be reversed for want of a finding on a
particular issue, where it is apparent that the failure to find on that issue is in no
11

way prejudicial to the appellant.”]; Hutchings v. Castle (1874) 48 Cal. 152, 156
[although trial court “should have found upon the issue,” because there was “no
legal evidence sufficient to justify a finding” for defendant, “the omission to find
. . . could not have prejudiced the defendant” and “is [not] a reason for reversing
the judgment”].
In several decisions that predated the 1914 addition to our Constitution of a
“miscarriage of justice” provision for civil cases (former article VI, section 4 ½),
we required, based on section 475, a showing of prejudice to justify reversal. In
McCourtney v. Fortune (1881) 57 Cal. 617, 619 (McCourtney), we held that a
judgment may not be reversed for a trial court’s failure to make a finding on a
particular issue where the omission “is not prejudicial to the appellant.” Citing
section 475, we explained that “[n]o judgment can be reversed for any error or
irregularity in the proceedings of a case which does not affect the substantial rights
of the parties.” (McCourtney, at p. 619.) Applying this rule, we held that, because
the finding the trial court had failed to make was, in light of other findings, “of no
moment,” the omission was, “if anything, a mere irregularity, from which no
possible injury could result to the appellants, and it is no ground for the reversal of
the judgment.” (Id. at pp. 619, 620.) A few years later, citing McCourtney, we
explained that “[w]hen the [trial] court fails to find on a material issue, the
judgment will not be reversed, if the finding omitted must have been adverse to
the appellant.” (People v. Center (1885) 66 Cal. 551, 564, italics added.
Ten years after McCourtney, in Winslow v. Gohransen (1891) 88 Cal. 450,
451-452 (Winslow), we explained that a trial court’s failure to make a finding on
all issues is not reversible error if there was no evidence to support a finding on
the omitted issues in favor of the complaining party, or if the evidence on those
issues was insufficient to support such a finding. Again citing section 475, we
reasoned: “In either case the finding of the court could only be against the
allegation, and consequently would not ‘invalidate’ the judgment rendered in
accordance with the other findings; and inasmuch as the failure to make such
12

finding would not affect the substantial rights of the appellant, the judgment ought
not to be reversed.” (Winslow, supra, at p. 452.) In other words, we explained,
“[i]f the omitted findings must have been adverse to the appellant, their omission
is not error sufficient to authorize the reversal of the judgment.” (Id. at pp. 452-
453.) Notably, none of the decisions on which defendant relies cited or discussed
section 475 or its “substantially identical” source, section 71 of the 1851 Practice
Act. (Cahill, supra, 5 Cal.4th at p. 525, fn. 6.
We began grounding the prejudice inquiry in the state Constitution soon
after the 1914 amendment to former article VI, section 4 ½ that made its
“miscarriage of justice” standard applicable in civil cases. In Maloof v. Maloof
(1917) 175 Cal. 571, 573, the defendant sought reversal in a case tried by the court
based on the court’s “failure to find upon material issues.” We rejected the claim,
explaining: “[I]t is perfectly apparent, on the whole record, that the trial judge did
not think that the defendant had established a cause of action in her favor, and that
if, when he signed the findings, his attention had been directed to the specific issue
under discussion, he would inevitably have made a finding on it against the
defendant. We are satisfied that the omission to find did not result in a
‘miscarriage of justice,’ and the error must therefore be disregarded under the
provision of [former] section 4 ½ of article VI of the Constitution.” (Id. at p. 574.
Again, none of the decisions on which defendant relies cites or discusses the
constitutional “miscarriage of justice” provision for civil cases that has existed
since 1914.
The significance of this analytical omission is clear from our decision in
Cahill, supra, 5 Cal.4th at page 509, which relied on the constitution’s
“miscarriage of justice” provision to overrule our decisions holding that the
erroneous admission of a coerced confession is reversible per se under California
law. Cases predating adoption of the constitutional provision, we explained, did
not consider or decide whether the erroneous admission of a coerced confession
constitutes a “miscarriage of justice” within the meaning of that provision such
13

that reversal is required “without regard to the other evidence received at trial.”
(Cahill, at p. 494, fn. 10.) Cases postdating that event, we continued, had “lost
sight of” the new provision’s “principal purpose and significance” insofar as they
focused on the persuasive impact that coerced confessions, “ ‘as a class,’ ‘[a]lmost
invariably’ ” have. (Id. at p. 503.) Recognition of this impact “simply means that
the improper admission of a confession is much more likely to affect the outcome
of a trial than are other categories of evidence, and thus is much more likely to be
prejudicial under the traditional harmless-error standard.” (Ibid.) But this
increased likelihood of prejudice “does not . . . justify the judicial adoption of a
state-law rule that automatically and monolithically treats all improperly admitted
confessions as requiring reversal of the defendant’s conviction; the California
constitutional reversible-error provision was adopted for the specific purpose of
eliminating just such a prophylactic approach to reversible error.” (Ibid.) As to
considerations of stare decisis, we reasoned in part that (1) the precedents
supporting the defendant did not even “attempt to explain how a rule requiring
automatic reversal . . . was compatible with the purpose of the applicable state
constitutional provision” (id. at p. 508), and (2) following them “would fail to give
proper recognition to the important public policies underlying the [constitutional]
reversible error provision” (ibid.), including maintaining “the public’s confidence
in the criminal justice system” (id. at p. 509).
In Soule, supra, 8 Cal.4th at page 574, we relied on article VI, section 13
and Cahill in the civil context in declining to follow the “[d]ecades old” principle,
recited in “a substantial body of California decisions,” that “the erroneous denial
of correct specific instructions covering a civil litigant’s supportable ‘theory of the
case’ ” is reversible per se. We first observed that the “line of authority [was] not
unbroken,” and that “[a] number of decisions” had “assessed the actual effect of”
such errors “on the judgment.” (Soule, at p. 575.) We next explained that the
principles Cahill discussed, “properly adapted, apply with equal or even greater
force to the issue before us.” (Id. at p. 578.) “As in Cahill, the express terms of”
14

article VI, section 13 “weigh against automatic reversal,” because the section
“explicitly mentions ‘misdirection of the jury’ as error [that] warrants reversal”
only if a miscarriage of justice would otherwise result. (Soule, at p. 579.) And
decisions applying “the traditional rationale that certain forms of instructional
omission in civil cases are ‘inherently’ prejudicial” had “ ‘lost sight of the
principal purpose and significance of’ ” our constitutional “harmless error”
provision. (Ibid.) “Erroneous civil instructional omissions, like the criminal
evidentiary error at issue in Cahill, may be more or less likely to cause actual
prejudice, depending on their nature and context. Particularly serious forms of
error might ‘almost invariably’ prove prejudicial in fact. But it does not follow
that courts may ‘automatically and monolithically’ treat a particular category of
civil instructional error as reversible per se. Article VI, section 13 of the
California Constitution requires examination of each individual case to determine
whether prejudice actually occurred in light of the entire record. [Citation.] [¶]
Finally, we may not blindly endorse traditional rules of automatic reversal . . . in
order to preserve doctrinal stability. As in Cahill, our adherence to such principles
would undermine the important and still-vital requirements and policies of article
VI, section 13 of the California Constitution. No form of civil trial error justifies
reversal and retrial, with its attendant expense and possible loss of witnesses,
where in light of the entire record, there was no actual prejudice to the appealing
party.” (Soule, at p. 580.
In People v. Breverman (1998) 19 Cal.4th 142, 172-179, we again relied on
article VI, section 13 and Cahill to overrule, for purposes of noncapital cases, our
prior decisions announcing a rule of near-automatic reversal for a trial court’s
error in failing to instruct, sua sponte, on all lesser included offenses the evidence
supports. This error, we explained, “is not a fundamental structural defect in the
mechanism of the criminal proceeding [citation] which cannot or should not be
evaluated for prejudice by reference to ‘the entire cause, including the evidence.’ ”
(Id. at p. 176.) Instead, “it is a mere trial error, one committed in the presentation
15

of the case to the jury,” and its “probable adverse effect . . . in a particular case can
readily be assessed by an individualized, concrete examination of the record in
that case.” (Ibid.) Although our prior decision announcing the rule mentioned the
constitutional harmless error provision, it simply “assert[ed], as an ipse dixit” (id.
at p. 176), that this “form of error is itself a miscarriage of justice” (ibid.), and it
“provided [no] significant analysis to support the conclusion that the California
Constitution precludes, rather than requires, examination of the entire record,
including the evidence, for actual harm” (id. at pp. 175-176). The constitutional
“obligation” under article VI, section 13 to determine whether an error produced a
miscarriage of justice “cannot be avoided” by such “ipse dixit.” (Id. at p. 176.
This analytical shortcoming, combined with Cahill’s “reexamination of the
meaning of” the constitutional harmless error provision, “compelled” overruling
our precedents and “depart[ing] from the ‘fundamental,’ though ‘flexible,’
jurisprudential policy of stare decisis.” (Id. at p. 178, fn. 26.
In light of these decisions, the precedents on which defendant relies, which
fail to mention, let alone discuss, the constitutional harmless error provision, do
not offer a sound basis for a rule of automatic reversal. Because article VI, section
13 of the California Constitution explicitly identifies “any error as to any matter of
procedure” (ibid.) as error that warrants reversal only if a miscarriage of justice
would otherwise result, here, as in Soule and Cahill, its “express terms . . . weigh
against automatic reversal” (Soule, supra, 8 Cal.4th at p. 579) for a court’s
procedural error in failing to issue a statement of decision. Even were our
precedents uniform in applying a rule of automatic reversal, as Soule explains, “we
may not blindly endorse” that rule “in order to preserve doctrinal stability,”
because doing so “would undermine the important and still-vital requirements and
policies of article VI, section 13.” (Soule, at p. 580.) Given the constitutional
provision, an inquiry into prejudice is required.
In addition to relying on precedent, defendant argues that, because a trial
court’s error in failing to issue a statement of decision “impairs” the “fundamental
16

right[]” to a trial, “which necessarily includes the right to a decision on the matters
in dispute,” “[i]t is a ‘structural defect’ in the trial proceedings” that is reversible
per se. According to defendant, in a nonjury trial, a court’s “findings are, in
substance, a special verdict,” and “the statement of decision is the court’s final
decision.” It follows, defendant argues, that a failure to issue a statement of
decision constitutes “a failure to decide the case,” and that “[e]ntering judgment
without issuing a required statement of decision is tantamount to” entering
judgment in a jury trial “without having the jury render a verdict.” Defendant also
argues that a court’s error in failing to issue a statement of decision “ ‘defies
evaluation for harmlessness’ ”; because a court is free to revise its statement of
intended decision, when it enters judgment without issuing a statement of
decision, “it is impossible to speculate what the result might have been had the
judge complied with the mandate of [section] 632.”
In light of our precedent and the terms of the relevant statutes, we reject
defendant’s arguments. Regarding our precedent, as noted above, in Winslow,
supra, 88 Cal. 450, we explained that where a trial court fails to make a finding on
an issue that could only be decided in a way that “would not ‘invalidate’ the
judgment rendered in accordance with the other findings” (id. at p. 452), “the
failure to make such finding would not affect the substantial rights of” (ibid.) the
complaining party and “is not error sufficient to authorize the reversal of the
judgment” (id. at p. 453). In a separate decision decided the same year as
Winslow, we explained that the rule defendant here invokes — where a trial court
fails to make findings upon all the material issues presented by the pleadings,
“there has been a mistrial, and the [court’s] decision, having been rendered before
the case has been fully tried, is considered to have been a decision ‘against
law’ ” — applies only where a finding on the omitted issue “would have the effect
to countervail or destroy the effect of the [court’s] other findings.” (Brison v.
Brison (1891) 90 Cal. 323, 328.) Thus, “[i]f the findings which are made are of
such a character as to dispose of issues which are sufficient to uphold the
17

judgment, it is not a mistrial or against law to fail or omit to make findings upon
other issues which, if made, would not invalidate the judgment.” (Ibid.) The next
year, in Diefendorff v. Hopkins (1892) 95 Cal. 343, in the course of restating the
rule that a trial court’s failure to make a finding on an issue that “could make no
possible difference in the result” (id. at p. 347) — i.e., had “become immaterial”
(id. at pp. 347-348) — “is not error, or at least, . . . not a prejudicial error” (id. at p.
348), we rejected the argument that a failure to find upon all issues “is prejudicial
error, because it deprives [the complaining party] of the advantages which it was
the purpose of the statute (Code Civ. Proc. secs. 632, 633) to secure, viz., a final
adjudication upon each separate issue, to serve as a basis for a final judgment by
this court on the appeal.” (Ibid.) Consistent with these precedents, we have more
generally explained that “the absence of findings [does] not make [a] judgment
void, but at most [is] only . . . error reviewable on appeal.” (May v. Hatcher
(1900) 130 Cal. 627, 629.
Also relevant are decisions involving the adequacy of factual findings and
legal conclusions contained in the judgment itself. As detailed earlier, before the
1960’s, the relevant statutes required that a court’s findings of facts and
conclusions of law “be separately stated” in writing, and that “[j]udgment upon the
decision . . . be entered accordingly.” (See Stats. 1959, ch. 637, § 1, p. 2613;
Stats. 1968, ch. 716, § 1, pp. 1417-1418.) Notwithstanding this wording, we have
consistently held that factual findings and legal conclusions in the judgment
satisfied the statutory requirements. (Estate of Janes (1941) 18 Cal.2d 512, 514;
Estate of Exterstein (1934) 2 Cal.2d 13, 15-16; Prothero v. Superior Court (1925
196 Cal. 439, 443; Shaingold v. Shaingold (1923) 191 Cal. 438, 439; McKelvey v.
Wagy (1910) 157 Cal. 406, 408; May v. Hatcher, supra, 130 Cal. at p. 628; Locke
v. Klunker (1898) 123 Cal. 231, 239; Hopkins v. Warner (1895) 109 Cal. 133,
139.) Thus, even under the prior statutory language, it was not true, as defendant
asserts, that a trial court’s failure to issue a decision, separate from the judgment,
setting forth its factual findings and conclusions of law necessarily meant that
18

there was a failure to decide the case. Nothing suggests the Legislature, in
amending section 632 to require “a statement of decision explaining the factual
and legal basis for [the court’s] decision” instead of a decision stating factual
findings and conclusions of law, intended to change our well-established rule.
Here, as previously explained, the judgment set forth the following: (1
defendant molested plaintiff numerous times when she was 10 years old, including
acts of unlawful penetration, sodomy, oral copulation of him and other lewd and
lascivious acts; (2) his conduct was outrageous and a substantial factor in causing
plaintiff’s injuries; (3) he took advantage of plaintiff’s vulnerability due to her age;
(4) plaintiff was injured as a proximate result of defendant’s conduct, causing her
to incur past and future medical/psychological treatment expenses of $10,296.00;
and (5) plaintiff lost income as a proximate result of defendant’s conduct in the
amount of $48,800.00. Given these findings, defendant is incorrect that the trial
court’s failure to issue a separate statement of decision constituted a failure to
decide the case.
Finally, defendant’s argument, which depends largely on cases applying the
language of earlier provisions, is inconsistent with aspects of the relevant statutes
as they stand today. Under section 632 as it was enacted in 1872, courts trying
issues of fact were required to issue written findings of facts and conclusions of
law in all cases, even if not requested. Beginning in 1959, the written findings had
to “disclose the court’s determination of all issues of fact in the case.” (Stats.
1959, ch. 637, § 1, p. 2613, italics added.) However, since section 632 was
amended in 1981, courts must issue a statement of decision “explaining the factual
and legal basis for its decision” only if a party makes a timely request, and must
address in that statement only the “controverted issues” a party “specif[ies]” in the
request. (Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704,
709-710, fn.3.) In light of these provisions, and the cases discussed above, we
reject defendant’s assertion that a court’s failure to issue a statement of decision
19

addressing the specified issues necessarily constitutes a complete “failure to
decide the case.”
Of course, the more issues specified in a request for a statement of decision
and left unaddressed by a court’s failure to issue a statement, the “more difficult,
as a practical matter, [it may be] to establish harmlessness.” (People v. Mil (2012
53 Cal.4th 400, 412 [adopting prejudice test and rejecting per se reversal for
instructions that omit multiple elements of a criminal offense].) A trial court’s
failure to issue a properly requested statement of decision may effectively shield
the trial court’s judgment from adequate appellate review. (E.g., Gordon v. Wolfe
(1986) 179 Cal.App.3d 162, 167-168 [without a statement of decision allocating
general and special damages, “we are unable to review the sufficiency of the
[lump sum] award properly by examining its various components in light of the
evidentiary support for each of them”].) As plaintiff herself acknowledges, “a trial
court's failure to issue a statement of decision may at times require reversal in
order for the appellate court to effectively perform a review of the material
issues.” But the possibility of causing prejudice even “in many cases . . . does not
. . . justify the judicial adoption of a state-law rule that automatically and
monolithically treats all [failures to issue a requested statement of decision] as
requiring reversal.” (Cahill, supra, 5 Cal.4th at p. 503.) As we have explained,
our “constitutional reversible-error provision was adopted for the specific purpose
of eliminating just such a prophylactic approach to reversible error.” (Ibid.
It is true that, in this case, the correct procedure was not followed before the
court signed and entered the judgment. Defendant did not have the requisite time
to file objections to the proposed judgment before the court signed and entered the
judgment.3 However, citing our Constitution’s “miscarriage of justice” provision,
3
If a party timely requests a statement of decision, a proposed statement of
decision and judgment must be prepared and served on all parties by either the
court or a party the court designates. (Cal. Rules of Court, rule 3.1590(f).) “Any
(footnote continued on next page)
20

we have long held that similar procedural errors are subject to harmless error
review. (Miller v. Murphy (1921) 186 Cal. 344, 350 [failure to serve proposed
findings before court signed them was not prejudicial]; Baker v. Eilers Music Co.
(1917) 175 Cal. 652, 656-657 [premature signing of findings and judgment was
not prejudicial].
DISPOSITION
For reasons stated above, we affirm the Court of Appeal’s judgment.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
HUMES, J.*
*Presiding Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
(footnote continued from previous page

party may, within 15 days after the proposed statement of decision and judgment
have been served, serve and file objections to the proposed statement of decision
or judgment.” (Id., rule 3.1590(g).) Here, the court signed the proposed judgment
two days after plaintiff’s counsel first attempted to fax it to defendant’s counsel.
21

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion F.P. v. Monier

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 222 Cal.App.4th 1087
Rehearing Granted
Opinion No.
S216566
Date Filed: November 27, 2017

Court:
Superior
County: Sacramento
Judge: Robert Ahern*

Counsel:
Ortiz Law Office, Jesse S. Ortiz III; Jay-Allen Eisen Law, Jay-Allen Eisen and Aaron S. McKinney for
Defendant and Appellant.
Kathryn Karcher, Jan T. Chilton, Jon B. Eisenberg, Dennis A. Fischer Lisa R. Jaskol, Robin B. Johansen,
Robin Meadow; Ferguson Case Orr Paterson and Wendy C. Lascher for California Academy of Appellate
Lawyers as Amicus Curiae on behalf of Defendant and Appellant.
Munger, Tolles & Olson, Dentons US, Jeffrey L. Bleich, Hannah E. Shearer, Thomas P. Clancy; Law
Offices of John P. Henderson, John P. Henderson and David C. Henderson for Plaintiff and Respondent.

*Retired judge of the Santa Clara Superior Court, assigned by the Chef Justice pursuant to article VI,
section 6 of the California Constitution.


Counsel who argued in Supreme Court (not intended for publication with opinion):
Jay-Allen Eisen
Jay-Allen Eisen Law Corporation
2431 Capitol Avenue
Sacramento, CA 95816
(916) 444-6171
Jeffrey L. Bleich
Dentons US
1999 Harrison Street, Suite 1300
Oakland, CA 94612
(415) 882-5000

Opinion Information
Date:Docket Number:
Mon, 11/27/2017S216566

Parties
1F. P. (Plaintiff and Respondent)
Represented by John P. Henderson
Law Offices of John P. Henderson
8150 Sierra College Boulevard, Suite 170
Roseville, CA

2F. P. (Plaintiff and Respondent)
Represented by Jeffrey L. Bleich
Dentons US LLP
525 Market Street, 26th Floor
San Francisco, CA

3Joseph Monier (Defendant and Appellant)
Represented by Jay-Allen Eisen
Jay-Allen Eisen Law Corporation
1000 G Street, Suite 210
Sacramento, CA

4California Academy of Appellate Lawyers (Amicus curiae)
Represented by Wendy C. Lascher
Lascher & Lascher
1050 South Kimball Road
Ventura, CA


Disposition
Nov 27 2017Opinion: Affirmed

Dockets
Feb 19 2014Petition for review filed
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen crc.8.25(b)
Feb 19 2014Record requested
emailed Court of Appeal.
Feb 20 2014Received Court of Appeal record
one doghouse (volume 1 of 2)
Mar 3 2014Association of attorneys filed
for Aimee Feinberg, counsel for respondent.
Mar 12 2014Answer to petition for review filed
Plaintiff and Respondent: F. P.Attorney: Aimee Athena Feinberg Filed pursuant to CRC, rule 8.25(b).
Mar 24 2014Reply to answer to petition filed
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen
Apr 16 2014Petition for review granted; issues limited
The petition for review is granted. The issue to be briefed and argued is limited to the following: Is a trial court's error in failing to issue a statement of decision upon a timely request reversible per se? Votes: Cantil-Sakauye, C.J., Baxter, Werdegar, Chin, Corrigan and Liu, JJ.
Apr 16 2014Letter sent requesting certification of interested parties/entities
sent to all counsel
Apr 29 2014Certification of interested entities or persons filed
By respondent's counsel Aimee Athena Feinberg.
May 1 2014Certification of interested entities or persons filed
by appellant's counsel Jay-Allen Eisen.
May 1 2014Request for extension of time filed
Appellant requests a 60-day extension of time to file the opening brief on the merits. By counsel Jay-Allen Eisen.
May 2 2014Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 15, 2014.
Jul 8 2014Request for extension of time filed
by Jay Allen Eisen counsel for appellant, requesting an extension to August 5, 2014 to file opening brief on the merits.
Jul 16 2014Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 5, 2014.
Jul 24 2014Received additional record
one doghouse (volume 2 of 2)
Aug 6 2014Opening brief on the merits filed
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen Opening brief on the merits filed.Due on 08/05/2014 By 21 Day(s) Opening brief on the merits filed.Due on 07/15/2014 By 60 Day(s) (CRC 8.25(b))
Aug 14 2014Notice of substitution of counsel
Counsel for respondent, F.P.
Aug 22 2014Request for extension of time filed
by Jeffrey L. Bleich counsel for respondent requesting an extension to November 4, 2014 to file the answer brief on the merits.
Aug 28 2014Extension of time granted
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 4, 2014. No further extensions of time are contemplated.
Nov 4 2014Answer brief on the merits filed
Plaintiff and Respondent: F. P.Attorney: Jeffrey L. Bleich Attorney: John P. Henderson
Nov 18 2014Request for extension of time filed
by Jay Allen Eisen counsel for appellant requesting an extension to January 23, 2015 to file the reply brief on the merits.
Nov 24 2014Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 23, 2015.
Jan 26 2015Reply brief filed (case fully briefed)
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen Reply brief filed (case fully briefed).Due on 01/23/2015 By 60 Day(s)
Feb 26 2015Request for extension of time filed
by Wendy C. Lascher, counsel for California Academy of Appellate Lawyers.
Mar 5 2015Extension of time granted
On application of California Academy of Appellate Lawyers and good cause appearing, it is ordered that the time to serve and file the Amicus Curiae is extended to and including March 11, 2015.
Mar 12 2015Application to file amicus curiae brief filed
by Wendy C. Lascher, counsel for California Academy of Appellate Lawyers in support of appellant.
Mar 25 2015Permission to file amicus curiae brief granted
The application of California Academy of Appellate Lawyers for permission to file an amicus curiae brief in support of appellant is hereby granted. (See Cal. Rules of Court, rule 8.520(f).)
Mar 25 2015Amicus curiae brief filed
Amicus curiae: California Academy of Appellate LawyersAttorney: Wendy C. Lascher
Jul 16 2015Change of contact information filed for:
Jay- Allen Eisen Law Corporation, counsel for appellant Joseph Monier.
May 6 2016Association of attorneys filed
F. P., Plaintiff and Respondent Jeffrey L. Bleich, Supreme Court appointment
May 6 2016Change of contact information filed for:
F. P., Plaintiff and Respondent Jeffrey L. Bleich, Supreme Court appointment
Mar 8 2017Oral argument letter sent
Dear Counsel: Please be advised that the court could set this case for argument within the next few months. Schedules showing the court's oral argument dates and locations for the next twelve months can be found at http://www.courts.ca.gov/supremecourt.htm by clicking on "calendars, " and then accessing the "Oral Argument Calendar Dates" documents. Any counsel who believes good cause exists to avoid scheduling oral argument for a particular date (including counsel who, before receiving this letter, have previously asked to avoid certain dates) should inform the court within 7 calendar days of receiving this letter with a detailed explanation for such cause. Thereafter, counsel must immediately update the court on an ongoing basis as additional conflicts constituting good cause may arise. Examples of conflicts previously found to constitute good cause to avoid scheduling argument on any particular date include significant health-related issues; prepaid and nonrefundable travel arrangements booked in advance of the court's notification regarding oral argument; and significant family events such as marriage. Examples of conflicts previously found not to constitute good cause include scheduled trial and hearing dates in lower courts; conflicting professional seminars, meetings, or conventions; and planned significant family events that do not conflict with the actual dates on which argument might be held. Once the court files an order setting this case for oral argument, that date will not be changed absent exceptional cause, such as a medical emergency. Immediately upon filing of the calendar setting this case for argument, the court will send counsel an email communication with (1) a copy of that document; (2) an appearance sheet, upon which counsel must provide the names of the attorney or attorneys who will present argument, along with further instructions governing any request to divide argument time; and (3) a general notice regarding appearance for oral argument before the court. If a party wishes to bring to the court's attention new authorities, new legislation, or other matters that were not available in time to be included in the party's brief on the merits, the party must comply with California Rules of Court, rules 8.630(d) and 8.520(d).
Mar 15 2017Notice of Unavailability of Counsel Filed
Counsel unavailable April 3-6, 2017, May 4-5, 2017, and June 2, 5-6, 2017. F. P., Plaintiff and Respondent Jeffrey L. Bleich, Supreme Court appointment
May 10 2017Case ordered on calendar
To be argued on Tuesday, May 30, 2017, at 9:00 a.m., in San Francisco.
May 12 2017Filed:
Letter dated May 12, 2017, informing the court of possible need to ask that the matter be rescheduled from the May 30, 2017, calendar. Joseph Monier, Defendant and Appellant Jay-Allen Eisen, Retained counsel
May 16 2017Received:
Original copy of letter filed May 12, 2017 by Jay-Allen Eisen, counsel for appellant.
May 17 2017Argument rescheduled
To be called and continued to the September 2017 calendar.
May 30 2017Cause called and continued
Cause called and continued to the September 2017 calendar.
Aug 2 2017Case ordered on calendar
to be argued on Tuesday, September 5, 2017, at 9:00 a.m., in San Francisco.
Jul 31 2017Justice pro tempore assigned
Hon. James M. Humes First Appellate District, Division One
Sep 5 2017Cause argued and submitted
Nov 22 2017Notice of forthcoming opinion posted
To be filed on Monday, November 27, 2017 at 10:00 a.m.
Nov 27 2017Opinion filed: Judgment affirmed in full
We affirm the Court of Appeal's judgment. Majority Opinion by Chin, J. -- joined by Cantil-Sakauye, C. J., Corrigan, Liu, Cuéllar, Kruger, and Humes*, JJ. *Presiding Justice of the Court of Appeal, First Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Briefs
Mar 25 2015Amicus curiae brief filed
Amicus curiae: California Academy of Appellate LawyersAttorney: Wendy C. Lascher
Aug 6 2014Opening brief on the merits filed
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen
Nov 4 2014Answer brief on the merits filed
Plaintiff and Respondent: F. P.Attorney: John P. Henderson Attorney: Jeffrey L. Bleich
Jan 26 2015Reply brief filed (case fully briefed)
Defendant and Appellant: Joseph MonierAttorney: Jay-Allen Eisen
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website