throbber

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`Filed 11/27/17
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`IN THE SUPREME COURT OF CALIFORNIA
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`F.P.,
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`Plaintiff and Respondent,
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`v.
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`JOSEPH MONIER,
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`Defendant and Appellant.
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` ____________________________________)
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`S216566
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`Ct.App. 3 C062329
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`Sacramento County
`Super. Ct. No. 06AS00671
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`Section 632 of the Code of Civil Procedure1 provides that “upon the trial of
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`a question of fact by the court,” the court “shall issue a statement of decision
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`explaining the factual and legal basis for its decision as to each of the principal
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`controverted issues at trial upon the request of any party appearing at the trial.”
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`We granted review in this case to decide whether a court’s error in failing to issue
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`a statement of decision as this section requires is reversible per se. The Court of
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`Appeal held that such errors are not reversible per se, but are subject to harmless
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`error review. The court based its conclusion on article VI, section 13 of the
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`California Constitution (article VI, section 13), which provides: “No judgment
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`shall be set aside, or new trial granted, in any cause, on the ground of misdirection
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`of the jury, or of the improper admission or rejection of evidence, or for any error
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`as to any matter of pleading, or for any error as to any matter of procedure, unless,
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`1
`All further unlabeled statutory references are to the Code of Civil
`Procedure.
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`1
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`after an examination of the entire cause, including the evidence, the court shall be
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`of the opinion that the error complained of has resulted in a miscarriage of
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`justice.” For reasons explained below, we agree with the Court of Appeal and
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`affirm its judgment.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`In February 2006, plaintiff F.P. sued defendant Joseph Monier for acts of
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`sexual battery that defendant allegedly committed in 1990 and 1991, when
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`plaintiff was 10 years old and defendant was 17 years old. Plaintiff also sued
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`defendant’s parents for negligence, alleging that they had failed reasonably to care
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`for, supervise, direct, oversee, and protect her from defendant. Defendant filed an
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`answer denying the allegations and asserting in part that others were at fault and
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`that any liability should be apportioned among them.
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`Before trial, plaintiff settled her claim against defendant’s parents. The rest
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`of the action went to trial before the court. The evidence presented during that
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`trial showed, among other things, that plaintiff's father also sexually abused
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`plaintiff during the time period in question. Dr. Laurie Wiggen, a licensed clinical
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`psychologist who treated plaintiff from September 2005 until December 2007,
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`diagnosed plaintiff as having posttraumatic stress disorder and attributed it to the
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`traumas resulting from the molestations by her father and defendant. Dr. Wiggen
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`could not separate the harm done by defendant from that done by plaintiff’s father,
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`testifying that their conduct was “cumulatively impactful.” Dr. Eugene Roeder, a
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`licensed psychologist who evaluated plaintiff in July 2005, diagnosed plaintiff as
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`suffering from major depression, an anxiety disorder, and posttraumatic stress
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`disorder. Like Dr. Wiggen, Dr. Roeder could not distinguish the symptoms
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`defendant had caused from those plaintiff’s father had caused, but he testified that
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`the molestation by plaintiff’s father “was dramatically more traumatic than” the
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`molestation by defendant because plaintiff’s relationship with her father “was a
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`2
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`much more central, basic relationship in her life” and “[h]er relationship with the
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`[defendant] was more tangential.”
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`The court issued a tentative decision on April 29, 2009, finding that
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`defendant had committed the alleged acts and that his conduct was a substantial
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`factor in causing plaintiff’s injuries. The court indicated its intent to award
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`damages in the amount of $305,096, consisting of $44,800 for lost income,
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`$10,296 for past and future medical expenses, and $250,000 for general
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`noneconomic damages. The court instructed plaintiff's counsel to prepare a
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`judgment. Later that day, defendant timely filed a request for a statement of
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`decision requesting, as relevant here, that the court set forth “the basis upon
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`which” it was awarding special damages, emotional distress damages, past and
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`future medical expenses, and lost wages.
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`On May 1, 2009, plaintiff’s counsel submitted a proposed judgment to the
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`court. In an accompanying declaration, counsel explained: (1) he faxed a copy of
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`the proposed judgment to defendant’s counsel after trial on April 29, 2009, and
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`was informed that defendant’s counsel was no longer at that number; (2) the next
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`day, April 30, he faxed a copy of the proposed judgment to the new fax number of
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`defendant’s counsel and left counsel a voicemail explaining that the trial judge,
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`who had been visiting, “needed” the proposed judgment reviewed and signed
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`“immediately” because the judge “was leaving Sacramento on May 1, 2009”; and
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`(3) he did not hear from defendant’s counsel and submitted the proposed judgment
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`to the court the next day, May 1, 2009.
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`On May 1, 2009, the court signed the judgment without issuing a separate
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`statement of decision. The judgment stated in relevant part: “After considering all
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`of the evidence and testimony presented at trial it is hereby adjudged, determined
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`and decreed that [defendant] molested his biological cousin, plaintiff [F.P.]
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`numerous times when she was ten years old, including acts of unlawful
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`penetration, sodomy, oral copulation of him and other lewd and lascivious acts.
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`The conduct of Defendant . . . is further found to be outrageous and a substantial
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`3
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`factor in causing injuries to the Plaintiff. Defendant took advantage of the
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`vulnerability of the Plaintiff due to her age. Plaintiff . . . was injured as a
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`proximate result of [defendant’s] sexual assaults of her causing her to incur past
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`and future medical/psychological treatment expenses of $10,296.00. Plaintiff lost
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`income as a proximate result of [defendant’s] sexual assaults of her in the amount
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`of $48,800.00.” The judgment ordered defendant to pay total damages of
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`$305,096.00, which included general damages of $250,000 and special damages of
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`$55,096.00.
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`Defendant appealed, arguing that the trial court had erred in failing to issue
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`a statement of decision and that the error was reversible per se. According to
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`defendant, without a statement of decision, it was unknown whether the trial court
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`had apportioned general damages as the law required. The Court of Appeal found
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`error, but disagreed that it was reversible per se. Article VI, section 13, the court
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`held, precludes reversal absent a showing that the trial court’s failure to issue a
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`statement of decision regarding the issues defendant had specified “resulted in a
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`miscarriage of justice.” The error here, the court found, did not result in a
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`miscarriage of justice because defendant had forfeited any right to apportionment
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`of damages by failing to raise the issue at trial. Thus, the court concluded, the
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`absence of a statement of decision on the issue of general noneconomic damages
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`was of no consequence.
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`We granted review, limiting the issue to whether “a trial court’s error in
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`failing to issue a statement of decision upon a timely request” is “reversible per
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`se.”2
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`DISCUSSION
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`The duty of a trial court in question here — to issue, upon the request of a
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`party appearing at a court trial of a question of fact, “a statement of decision
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`2
`Given this limitation, we express no opinion regarding the Court of
`Appeal’s conclusion that the error here was, in fact, harmless.
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`4
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`explaining the factual and legal basis for its decision as to each of the principal
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`controverted issues at trial” (§ 632) — reflects many years of statutory evolution.
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`In 1851, the Legislature enacted section 180 of the Practice Act, which provided
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`that “[u]pon the trial of an issue of fact by the Court, its decision shall be given in
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`writing, and filed with the clerk, within ten days after the trial took place. In
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`giving the decision, the facts found, and conclusions at law, shall be separately
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`stated. Judgment upon the decision shall be executed accordingly.” (Stats. 1851,
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`ch. 5, § 180, pp. 78-79.) Ten years later, the Legislature added a provision stating
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`that “[i]n cases tried by the court without a jury, no judgment shall be reversed for
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`want of a finding, or for a defective finding, of the facts, unless exceptions be
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`made in the court below to the finding, or to the want of a finding.” (Stats. 1861,
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`ch. 522, § 2, p. 589.) Five years after that, in 1866, the legislature combined these
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`provisions into a single section that provided: “Upon a trial of issue of fact by the
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`Court, judgment shall be entered in accordance with the finding of the Court, and
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`the finding, if required by either party, shall be reduced to writing and filed with
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`the Clerk. In the finding filed, the facts found and the conclusions of law shall be
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`separately stated. In such cases no judgment shall be reversed on appeal for want
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`of a finding in writing at the instance of any party who, at the time of the
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`submission of the cause, shall not have requested a finding in writing, and had
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`such request entered in the minutes of the Court . . . .” (Stats. 1865-1866, ch. 619,
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`§ 2, p. 844.)
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`In 1872, when the Legislature enacted the Code of Civil Procedure, it
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`replaced these provisions with section 632 and former section 633. Section 632
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`provided: “Upon the trial of a question of fact by the Court, its decision must be
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`given in writing and filed with the Clerk within twenty days after the cause is
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`submitted for decision, and unless the decision is filed within that time the action
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`must again be tried.” Former section 633 provided: “In giving the decision, the
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`facts found and conclusions of law must be separately stated. Judgment upon the
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`decision must be entered accordingly.” (Repealed by Stats. 1933, ch. 744, § 198,
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`5
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`p. 1904.) Two years later, the Legislature amended section 632 by (1) extending
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`the time for filing the decision from 20 to 30 days, and (2) deleting the clause
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`stating that “the action must again be tried” if the decision was not filed within the
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`specified time. (Code Amendments 1873-1874, § 79, p. 312.)
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`In 1933, the Legislature combined these separate provisions into a single
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`section 632, which provided in relevant part: “In superior courts and municipal
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`courts, upon the trial of a question of fact by the court, its decision must be given
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`in writing and filed with the clerk within thirty days after the cause is submitted
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`for decision. In giving the decision, the facts found and the conclusions of law
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`must be separately stated. . . . [¶] Judgment upon the decision must be entered
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`accordingly.” (Stats. 1933, ch. 744, § 105, p. 1876.) In 1959, the Legislature
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`added a sentence to the section stating that “[t]he statement of facts found shall
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`fairly disclose the court’s determination of all issues of fact in the case.” (Stats.
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`1959, ch. 637, § 1, p. 2613.)
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`The Legislature next substantively revised the section in 1968. As here
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`relevant, the amended section provided: “In superior courts, upon [the] trial [of a
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`question of fact by the court,] the court shall announce its intended decision.
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`Within the time after such announcement permitted by rules of the Judicial
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`Council, any party appearing at the trial may request findings. Unless findings are
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`requested, the court shall not be required to make written findings and
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`conclusions. . . . [¶] . . . [¶] Where findings are required, they shall fairly disclose
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`the court’s determination of all issues of fact in the case.” (Stats. 1968, ch. 716,
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`§ 1, pp. 1417-1418.)
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`The current version of section 632 began to take shape in 1981, when the
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`Legislature amended the statute to provide: “In superior . . . courts, . . . upon the
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`trial of a question of fact by the court, written findings of fact and conclusions of
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`law shall not be required. Upon the request of any party appearing at the trial,
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`made within 10 days after the court announces a tentative decision, . . . the court
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`shall issue a statement of decision explaining the factual and legal basis for its
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`6
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`decision as to each of the principal controverted issues at trial. The request for a
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`statement of decision shall specify those controverted issues as to which the party
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`is requesting a statement of decision. . . . [¶] The statement of decision shall be in
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`writing, unless the parties appearing at trial agree otherwise.” (Stats. 1981, ch.
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`900, § 1, p. 3425.)
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`In 1998, the Legislature slightly reordered this language so that the statute
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`provided in relevant part, as it does today, as follows: “In superior . . . courts,
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`upon the trial of a question of fact by the court, written findings of fact and
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`conclusions of law shall not be required. The court shall issue a statement of
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`decision explaining the factual and legal basis for its decision as to each of the
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`principal controverted issues at trial upon the request of any party appearing at the
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`trial. The request must be made within 10 days after the court announces a
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`tentative decision . . . . The request for a statement of decision shall specify those
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`controverted issues as to which the party is requesting a statement of decision. . . .
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`[¶] The statement of decision shall be in writing, unless the parties appearing at
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`trial agree otherwise.” (Stats. 1998, ch. 931, § 84, p. 6442.)
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`As this discussion demonstrates, except between 1872 and 1874, when
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`section 632 stated that “the action must again be tried” upon a trial court’s failure
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`to file its decision within the specified time, the statutes have not specified the
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`consequences of noncompliance. They have, however, at times expressly
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`precluded reversal for a failure to make findings if the appealing party did not
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`object to the failure in the trial court or file a written request for findings and have
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`it entered in the court’s minutes.
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`Moreover, at least since 1851, our generally applicable statutes have
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`precluded reversal for errors in civil cases absent prejudice. Section 71 of the
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`1851 Practice Act provided that “[t]he Court shall, in every stage of an action,
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`disregard any error or defect in the pleadings, or proceedings, which shall not
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`affect the substantial rights of the parties; and no judgment shall be reversed or
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`affected by reason of such error or defect.” (Stats. 1851, ch. 5, § 71, p. 61.) In
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`7
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`1872, the Practice Act provision became section 475, which initially provided:
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`“The Court must, in every stage of an action, disregard any error or defect in the
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`pleadings or proceedings which does not affect the substantial rights of the parties,
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`and no judgment shall be reversed or affected by reason of such error or defect.”
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`Since 1897, when the Legislature last amended it, section 475 has provided: “The
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`court must, in every stage of an action, disregard any error, improper ruling,
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`instruction, or defect, in the pleadings or proceedings which, in the opinion of said
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`court, does not affect the substantial rights of the parties. No judgment, decision,
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`or decree shall be reversed or affected by reason of any error, ruling, instruction,
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`or defect, unless it shall appear from the record that such error, ruling, instruction,
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`or defect was prejudicial, and also that by reason of such error, ruling, instruction,
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`or defect, the said party complaining or appealing sustained and suffered
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`substantial injury, and that a different result would have been probable if such
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`error, ruling, instruction, or defect had not occurred or existed. There shall be no
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`presumption that error is prejudicial, or that injury was done if error is shown.”
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`(Stats. 1897, ch. 47, § 1, p. 44.)
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`More importantly, for over 100 years, the California Constitution has also
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`expressly precluded reversal absent prejudice. In 1911, California voters added
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`former article VI, section 4 ½ to the state Constitution, which provided: “No
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`judgment shall be set aside, or new trial granted in any criminal case on the ground
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`of misdirection of the jury or the improper admission or rejection of evidence, or
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`for error as to any matter of pleading or procedure, unless, after an examination
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`of the entire cause including the evidence, the court shall be of the opinion that the
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`error complained of has resulted in a miscarriage of justice.” (Italics added.)
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`Three years later, the voters expanded the provision’s reach to civil cases by
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`changing the phrase “in any criminal case” to “in any case.” (See Vallejo etc.
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`R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 553-554.) Since 1966, when
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`the constitution was reorganized, the provision has appeared as article VI, section
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`13, which states: “No judgment shall be set aside, or new trial granted, in any
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`8
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`cause, on the ground of misdirection of the jury, or of the improper admission or
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`rejection of evidence, or for any error as to any matter of pleading, or for any
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`error as to any matter of procedure, unless, after an examination of the entire
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`cause, including the evidence, the court shall be of the opinion that the error
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`complained of has resulted in a miscarriage of justice.” (Italics added.)
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`As we have explained, article VI, section 13 generally “prohibits a
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`reviewing court from setting aside a judgment due to trial court error unless it
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`finds the error prejudicial.” (People v. Chun (2009) 45 Cal.4th 1172, 1201.) The
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`section applies to both constitutional and nonconstitutional errors. (People v.
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`Cahill (1993) 5 Cal.4th 478, 501 (Cahill).) It “empower[s]” appellate courts “to
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`examine ‘the entire cause, including the evidence,’ ” and “require[s]” them “to
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`affirm the judgment, notwithstanding error, if error has not resulted ‘in a
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`miscarriage of justice.’ ” (People v. O’Bryan (1913) 165 Cal. 55, 64.) To be sure,
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`even under section 13, an error is reversible per se when it constitutes “a
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`‘ “structural [defect] in the . . . trial mechanism” ’ that defies evaluation for
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`harmlessness.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579 (Soule);
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`see People v. Anzalone (2013) 56 Cal.4th 545, 554 [“A structural error requires
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`per se reversal because it cannot be fairly determined how a trial would have been
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`resolved if the grave error had not occurred.”]; Sandquist v. Lebo Automotive, Inc.
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`(2016) 1 Cal.5th 233, 261 [finding error “reversible per se” because its “effects are
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`‘ “unmeasurable” ’ and ‘ “def[y] analysis by ‘harmless-error’ standards” ’ ”].) But
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`“[c]ategorization of an error as structural represents ‘the exception and not the
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`rule.’ ” (People v. Sivongxxay (2017) 3 Cal.5th 151, 178.) “[A] strong
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`presumption” exists against finding that an error falls within the structural
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`category, and “it will be the rare case” where an error — even “a constitutional
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`violation” — “will not be subject to harmless error analysis.” (Anzalone, supra, at
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`p. 554.)
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`Based on these provisions, we agree with the Court of Appeal that a trial
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`court’s error in failing to issue a requested statement of decision is not reversible
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`9
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`per se, but is subject to harmless error review. Nothing in the language of section
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`632 as it now stands establishes a rule of automatic reversal, and nothing in the
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`statute’s legislative history suggests the Legislature intended the current statute to
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`have that effect. On the contrary, the statute’s evolution — specifically, the
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`deletion, after only two years, of language requiring that an action “again be tried”
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`for noncompliance — cuts against reading the statute in that manner. Thus, there
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`is no statutory directive to override section 475, which, as explained above,
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`precludes reversal absent prejudice. Nor is there any basis for construing section
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`632 to conflict with the constitutional mandate of article VI, section 13, which
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`precludes reversal “for any error as to any matter of procedure, unless, after an
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`examination of the entire cause, including the evidence, the court shall be of the
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`opinion that the error complained of has resulted in a miscarriage of justice.”
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`Although in a particular case a trial court’s failure to issue a requested statement of
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`decision may amount to a structural defect in the trial mechanism that defies
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`evaluation for harmlessness, we cannot say this type of error “fall[s] into the rare
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`class of mistakes that are reversible per se.” (People v. Sivongxxay, supra, 3
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`Cal.5th 151, 180.)
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`Defendant argues that, notwithstanding the relevant constitutional and
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`statutory provisions, a rule of automatic reversal is dictated by our precedents.
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`“This court,” he asserts, “has stated almost since statehood that a judgment must
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`be reversed for failure to provide required findings, and has restated the rule time
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`and again since” the adoption of section 475 in 1872, the extension of article VI,
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`section 4 ½ to civil cases in 1914, and the adoption of article VI, section 13 in
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`1966.
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`Defendant is correct that many of our decisions suggest a rule of automatic
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`reversal. For example, in possibly our first decision on the subject, after quoting
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`section 180 of the Practice Act, we reversed a judgment and remanded for a new
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`trial, stating: “We are of opinion that this law is not merely directory, and we have
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`no right to destroy or impair its efficacy. It is intended by it, that the decision of
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`10
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`the Court shall be the basis of the judgment in the same manner as the verdict of a
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`jury; and it follows, that without such decision the judgment cannot stand.”
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`(Russel v. Armador (1852) 2 Cal. 305 (Russel).) Eighty-five years later, in 1937,
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`we stated that if “findings are necessary” under section 632 “and have not been
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`waived,” it “is undoubtedly the law” that a court’s “failure to make them
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`constitutes prejudicial and reversible error.” (Carpenter v. Pacific Mut. Life Ins.
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`Co. (1937) 10 Cal.2d 307, 326.)
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`However, our decisions are not as uniform as defendant argues. In
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`McQuillan v. Donahue (1874) 49 Cal. 157, the trial court, in a bench trial, decided
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`the case “orally in favor of the plaintiff,” and “[n]o decision in writing was ever
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`given or filed.” The defendant moved for a new trial pursuant to section 632,
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`which stated at the time that “the action must again be tried” if the court failed to
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`file its decision within the specified time. The motion was denied, and the
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`defendant appealed, citing Russel. We affirmed, stating: “We are of opinion that
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`this provision of the statute is directory merely.” (McQuillan, at p. 158.) In
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`Gregory v. Gregory (1894) 102 Cal. 50, 51, the unsuccessful plaintiffs in a quiet
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`title action tried by the court sought reversal on the ground that “findings of fact
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`were not waived, and none were filed by the court below.” We rejected the claim,
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`citing the principle that “a judgment will not be reversed for want of a finding
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`upon a particular issue, where it is apparent that the omission in no way prejudiced
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`the appellant.” (Id. at p. 52.) In Gates v. McLean (1886) 70 Cal. 42, 46, we
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`explained: “It has been repeatedly held, that even when the [trial] court has
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`omitted to find upon a material issue, a new trial may be denied if on the evidence
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`the finding must have been adverse to the party asking the new trial. By parity of
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`reason, a new trial may be denied if a finding in favor of the party asking the new
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`trial (upon a particular issue) could not have changed the result.” (See Murphy v.
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`Bennett (1886) 68 Cal. 528, 530 [“There should be findings upon all the material
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`issues in the case, but a judgment will not be reversed for want of a finding on a
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`particular issue, where it is apparent that the failure to find on that issue is in no
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`11
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`way prejudicial to the appellant.”]; Hutchings v. Castle (1874) 48 Cal. 152, 156
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`[although trial court “should have found upon the issue,” because there was “no
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`legal evidence sufficient to justify a finding” for defendant, “the omission to find
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`. . . could not have prejudiced the defendant” and “is [not] a reason for reversing
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`the judgment”].)
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`In several decisions that predated the 1914 addition to our Constitution of a
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`“miscarriage of justice” provision for civil cases (former article VI, section 4 ½),
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`we required, based on section 475, a showing of prejudice to justify reversal. In
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`McCourtney v. Fortune (1881) 57 Cal. 617, 619 (McCourtney), we held that a
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`judgment may not be reversed for a trial court’s failure to make a finding on a
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`particular issue where the omission “is not prejudicial to the appellant.” Citing
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`section 475, we explained that “[n]o judgment can be reversed for any error or
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`irregularity in the proceedings of a case which does not affect the substantial rights
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`of the parties.” (McCourtney, at p. 619.) Applying this rule, we held that, because
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`the finding the trial court had failed to make was, in light of other findings, “of no
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`moment,” the omission was, “if anything, a mere irregularity, from which no
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`possible injury could result to the appellants, and it is no ground for the reversal of
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`the judgment.” (Id. at pp. 619, 620.) A few years later, citing McCourtney, we
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`explained that “[w]hen the [trial] court fails to find on a material issue, the
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`judgment will not be reversed, if the finding omitted must have been adverse to
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`the appellant.” (People v. Center (1885) 66 Cal. 551, 564, italics added.)
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`Ten years after McCourtney, in Winslow v. Gohransen (1891) 88 Cal. 450,
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`451-452 (Winslow), we explained that a trial court’s failure to make a finding on
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`all issues is not reversible error if there was no evidence to support a finding on
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`the omitted issues in favor of the complaining party, or if the evidence on those
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`issues was insufficient to support such a finding. Again citing section 475, we
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`reasoned: “In either case the finding of the court could only be against the
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`allegation, and consequently would not ‘invalidate’ the judgment rendered in
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`accordance with the other findings; and inasmuch as the failure to make such
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`12
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`finding would not affect the substantial rights of the appellant, the judgment ought
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`not to be reversed.” (Winslow, supra, at p. 452.) In other words, we explained,
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`“[i]f the omitted findings must have been adverse to the appellant, their omission
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`is not error sufficient to authorize the reversal of the judgment.” (Id. at pp. 452-
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`453.) Notably, none of the decisions on which defendant relies cited or discussed
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`section 475 or its “substantially identical” source, section 71 of the 1851 Practice
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`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
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`“miscarriage of justice” standard applicable in civil cases. In Maloof v. Maloof
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`(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
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`‘miscarriage of justice,’ and the error must therefore be disregarded under the
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`provision of [former] section 4 ½ of article VI of the Constitution.” (Id. at p. 574.)
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`Again, none of the decisions on which defendant relies cites or discusses the
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`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
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`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
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`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
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`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
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`increased likelihood of prejudice “does not . . . justify the judicial adoption of a
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`state-law rule that automatically and monolithically treats all improperly admitted
`
`confessions as requiring reversal of the defendant’s conviction; the California
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`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
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`automatic reversal . . . was compatible with the purpose of the applicable state
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`constitutional provision” (id. at p. 508), and (2) following them “would fail to give
`
`proper recognition to the important public policies underlying the [constitutional]
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`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,
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`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
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`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
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`error might ‘almost invariably’ prove prejudicial in fact. But it does not follow
`
`that courts may ‘automatically and monolithically’ treat a particular category of
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`civil instructional error as reversible per se. Article VI, section 13 of the
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`California Constitution requires examination of each individual case to determine
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`whether prejudice actually occurred in light of the entire record. [Citation.] [¶]
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`Finally, we may not blindly endorse traditional rules of automatic rever

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