Tips of the Trade: New Standard for Appellate Review of Findings Supported by Clear and Convincing Evidence

• Publication year: 2021
• Author: By Ciarán O'Sullivan, Esq.*

TIPS OF THE TRADE: NEW STANDARD FOR APPELLATE REVIEW OF FINDINGS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE

By Ciarán O'Sullivan, Esq.*

MCLE Article

In the recent case of Conservatorship of O.B. (July 27, 2020),¹ the California Supreme Court announced a new, less deferential standard of appellate review of trial court findings and judgments that must be supported by clear and convincing evidence. As a result, the chances of obtaining reversal of such findings and judgments on appeal have somewhat improved. The clear and convincing concept arises frequently in trusts and estates litigation. This article discusses standards of appellate review in general as well as the facts and holding of Conservatorship of O.B., the new standard of review, and how the case may affect appeals in trusts and estates cases.

THE ROLE OF STANDARDS OF REVIEW IN APPEALS

As most practitioners know, the Court of Appeal does not simply retry a case or issue a decision based on how it thinks the trial court should have decided the case in the first place. Rather, our system vests the trial court with the obligation of making factual findings and then applying the law to the facts. At the outset of any appeal, the appellant is faced with the presumption that the trial court's judgment or order is correct (the "presumption of correctness").² Generally speaking, the Court of Appeal is limited to determining whether the trial court made an error of law and does not consider questions of fact.³ However, when no substantial evidence supports a judgment, it is deemed erroneous as a matter of law.⁴ In effect, this means that the Court of Appeal does, in a sense, review the facts to ensure the existence of substantial evidence to support the judgment where that is the grounds for appeal.⁵

To ensure consistency in carrying out these functions, courts have developed various "standards of review." Identifying the appropriate standard of review and tailoring one's arguments to it are essential in any appeal.⁶

THE THREE MAIN STANDARDS OF REVIEW

As relevant to most civil practitioners, including trusts and estates litigators, an appellant will typically be confronted by one or more of the following three standards of review:

DE NOVO OR INDEPENDENT APPELLATE REVIEW

The reviewing court applies this standard to review the trial court's application of a legal rule to undisputed facts. This standard of review is the least deferential to the trial court's decision. In fact, when reviewing pure legal decisions, the Court of Appeal gives no deference whatsoever to the trial court's ruling or the reason for its ruling, but rather decides the matter anew.⁷ In other words, having the de novo standard of review applied to an appeal puts the appellant in a more favorable position at the outset and, for this reason, appellants often will expend much ink in trying to convince the Court of Appeal to apply this standard.⁸

Examples of the application of the de novo standard of review particular to trusts and estates cases include interpretation of statutes⁹ and, where there is no conflicting evidence regarding the settlor's or testator's intent, resolving ambiguities in trust instruments and wills.¹⁰ Of course, trusts and estates litigators are governed by the civil rules of practice contained in the Code of Civil Procedure unless a specific Probate Code provision applies, which means that de novo review also may apply in a trusts and estates appeal whenever the interpretation of general civil statutes is at issue.¹¹

ABUSE OF DISCRETION

Many trial court rulings turn on the court's discretion to act or not act in a certain way. Such decisions are reviewed under the abuse of discretion standard. Under this standard of review, a Court of Appeal will disturb the trial court's ruling only upon a "clear case of abuse" and "a miscarriage of justice."¹² Discretion is abused only when the trial court "exceeds the bounds of reason" when all of the circumstances before it are considered, or when the trial court's decision is "so irrational or arbitrary that no reasonable person could agree with it."¹³

In cases where the abuse of discretion standard of review applies, the appellant has a tough road ahead. Even though the Court of Appeal may disagree with the trial court's ruling, the reviewing court will nevertheless uphold the ruling so long as the lower court adhered to the governing rules of law in exercising its discretion.¹⁴

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Rulings that turn on the court's discretion abound in probate and civil practices generally. For example, the measure of damages in any breach of trust action is within the trial court's discretion,¹⁵ as is the amount of extraordinary compensation due an executor.¹⁶ The same is true of attorney fee awards generally, whether authorized by statute or contract. Rulings on sanctioning or disqualifying an attorney are within the discretion of the trial court and will be reviewed under the abuse of discretion standard of review.

SUBSTANTIAL EVIDENCE STANDARD

This standard applies to any trial court ruling resolving factual disputes.

Under this standard of review, a factual finding must be affirmed where there is substantial evidence supporting it, even if there is other substantial evidence in support of a different finding.¹⁷ This is because the reviewing court does not substitute its judgment for that of the trial court: "That the [trial] court reasonably could have assessed her credibility less favorably or that our court could reasonably make a different assessment of credibility is not sufficient grounds for reversal."¹⁸ The testimony of one witness, even if contradicted, can constitute substantial evidence.¹⁹ When combined with the presumption of correctness, and other maxims of appellate review requiring the Court of Appeal to accept the evidence most favorable to the order or judgment and discard the unfavorable evidence, the substantial evidence standard can be fairly described as "the most difficult standard of review to meet." As one court put it, this is "as it should be, because it is not the function of the reviewing court to determine the facts."²⁰

As noted, the substantial evidence standard applies in any civil case when a reviewing court reviews the trial court's resolution of any question of disputed fact, whether at trial or otherwise.²¹ However, as discussed below, the trial courts may need to apply different standards of proof in making factual findings, and this raises the question of what the appropriate standard of appellate review of those findings should be. Put another way, does the trial court's standard of proof impact the Court of Appeal's standard of review?

CONSERVATORSHIP OF O.B. AND THE STANDARD APPLICABLE TO FACTUAL FINDINGS REQUIRING CLEAR AND CONVINCING EVIDENCE

In 2019's Conservatorship of O.B., the Court of Appeal for the Second District was faced with an argument that a higher standard of review should apply to a trial court factual finding required to be supported by clear and convincing evidence.²² The facts of the case are summarized as follows:

O.B. had autism spectrum disorder. She lived with her great-grandmother in Lompoc. Her mother T.B., and older sister C.B., who lived in Orange County, petitioned for appointment as limited conservators of O.B.'s person. At trial, O.B. offered the expert testimony of...