Evidence - Trial Court Burdens of Proof

• Jurisdiction: California,United States
• Author: By Justice Brian M. Hoffstadt
• Citation: Vol. 2020
• Publication year: 2020

Evidence - Trial Court Burdens of Proof

By Justice Brian M. Hoffstadt

Calibrating the Scales of Justice

We are all familiar with the iconic depiction of Lady Justice—her eyes blindfolded, one arm aloft and bearing scales, the other at her side holding a sword. We also all know that her blindfold symbolizes impartiality; her scales, the weighing of evidence; and her sword, the swift and final execution of her judgment.

But how, exactly, are Lady Justice’s scales calibrated? Who decides—and how do they decide—which way the scales tip, and by how much they tip, when the trier of fact is weighing the evidence?

This past year, the California appellate courts decided several cases addressing these questions—County of Kern v.Alta Sierra Holistic Exchange Service (2020) 46 Cal. App.5th 82 (Alta Sierra), In re Marriage of Hein (2020) 52 Cal.App.5th 519 (Marriage of Hein), In re Brace (2020) 9 Cal.5th 903 (Brace), Masellis v. Law Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077 (Masellis), and In re Marriage of Ankola (2020) 53 Cal.App.5th 369 (Marriage of Ankola). These cases reveal that the answers to these questions rest on a common framework and are anything but immutable.

Which Way Do the Scales Tip?

In nearly every depiction, Lady Justice’s scales are never perfectly balanced. This is by design. Courts need a mechanism for deciding cases when the evidence is equally matched. They need a tie breaker.

The allocation of the burden of proof is that tie breaker. If the burden of proof is placed on Cain, and the evidence is evenly matched, then Cain loses because he did not carry his burden of proof. The tie goes to Abel.

California law uses two mechanisms to allocate the burden of proof. First, the law assigns an initial burden of proof. (Evid. Code, §§ 500-502.) Second, the law sometimes re- allocates that initial burden using burden-of-proof-shifting statutory presumptions.¹ (Id., §§ 600-670.) Presumptions shifting the burden of proof come in two flavors—conclusive and rebuttable. (Id., § 601.)

A. Allocating the initial burden of proof

The default rule in California assigns the initial burden of proof to the party seeking relief from a court. (Evid. Code, § 500.) Thus, the plaintiff typically bears the burden of proving her claims (ibid.); the defendant typically bears the burden of proving his defenses (ibid.); and the movant for intermediary relief (such as summary judgment) or post- judgment relief (such as modifications to child support) bears the burden of establishing entitlement to that relief (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720 [summary judgment]; Marriage of Hein, supra, 52 Cal. App.5th at p. 536 [motion to modify child support]).

But this default rule can be overridden where “otherwise provided by law.” (Evid. Code, § 500.) For these purposes, “law” means “constitutional, statutory, and decisional law.” (Id., § 160.)

So what is a court to consider when deciding whether to hand down new “decisional” law that allocates the initial burden of proof in a way different from the default rule?

The Supreme Court in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661 (Lakin) identi- fied four relevant factors. First, which party already has the evidence needed to prove the fact at issue? (Id. at p. 660 [“the knowledge of the parties concerning the particular fact”].) Second, which party can more easily acquire relevant evidence regarding that fact? (Ibid. [“the availability of the evidence to the parties”].) Third, what is “the most desirable result in terms of public policy in the absence of proof of the particular fact”? (Ibid.) Lastly, what is the “the prob- ability of the existence or nonexistence of the fact”? (Id. at pp. 660-661.)

The four Lakin factors show that the decision to re-allo- cate the burden of proof turns on considerations of practi- cality (who has the evidence, who can get the evidence, and what is the probability of not getting the evidence) as well as public policy (what are the “public policy” consequences of not getting the evidence). These two considerations appear to be...