Set Your Standards (of Review) High © 2015In this article, Ms. Conrad explains the importance of knowing whether the standard of review in your case is abuse of discretion, substantial evidence, or de novo.
This article originally appeared in the CCTLA Litigator:
Set Your Standards (of Review) High © 2015
by Linda J. Conrad
Once upon a time, a long time ago...well, really only about one year ago, we received the opening brief in an appeal where the trial court set aside a default judgment under Code of Civil Procedure section 473.5. The standard of review for setting aside a default under section 473.5 is always abuse of discretion and the factual findings are reviewed under the substantial evidence standard of review. To our surprise, appellant argued that the de novo, or independent standard of review applied. Appellant seemed to under the impression that the briefing could omit all facts that supported the the trial court’s order, as if the appellate court had independent review, could ignore evidence supporting the order, and could view the evidence in the light most favorable to the appellant. Ignoring all evidence favorable to the court’s order was a mistake.
We were then able to frame the facts in the light most favorable to the court’s order and argue one of the most important aspects of any appeal -- the standard of review. The appellant lost this case because the attorney, who was also the trial attorney, did not understand the standard of review.
As any experienced trial lawyer should know, success on appeal depends on setting the issues up in the trial court: For instance, if the appeal is from a motion, every relevant element must be in the declarations, depositions, admissions, and other evidence. A court reporter must be at the hearing. The Statement of Decision must be accurate. If the appeal is following a trial, objections and their legal basis must be on the record. Evidentiary foundations must be secure. Everything (I really mean everything) must be on the record. Informal discussions “off the record” will not help you. A reporter should be present for all important motions and orders.
An appeal is won or lost based on the record. If it isn’t in the record, it didn’t happen. And any claim not raised below is forfeited. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 286.)
But most important in evaluating whether to file an appeal is the standard of review. Even if you think you have great facts, if you argue the wrong standard or review, you lose. The basic standards of review for the civil practitioner can be summarized as follows (but beware, because there are always exceptions and nuances):
• Independent or de novo review applied to pure questions of law, for example, the interpretation of law, a contract, pleadings, and summary judgments [where the evidence is viewed in the light most favorable to the nonmoving party];
• Substantial evidence review for factual findings; and
• Abuse of discretion review for rulings that are in the court’s discretion, such as motions to set aside defaults under Code of Civil Procedure section 473.5 and discovery orders.
Why is the standard of review more important than the facts of your case? Because contested facts are generally not important at the appellate level. The factual statement and arguments must be tailored according to the appropriate standard of review--generally emphasizing the facts that uphold the order or judgment. Here is what the courts have to say: “‘Arguments should be tailored according to the applicable standard of appellate review.’ Failure to acknowledge the proper scope of review is a concession of a lack of merit.” (Sonic Manufacturing Tech., Inc. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 [citations omitted].) “In every appeal, the threshold matter to be determined is the proper standard of review — the prism through which we view the issues presented to us. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 36, fn. 12.)
By failing to acknowledge the proper standard of review, appellant’s opening brief fails to provide the complete and impartial statement of the facts that is required for the abuse of discretion standard of review. That leaves the respondent in the position of being able to present a fair and independent version of the facts that supports the trial court’s order.
At a recent conference I attended, a justice said that if the appellant’s opening brief fails to provide an impartial statement of the facts, that justice puts the brief aside and begins the evaluation of the case by reading the respondent’s brief. Thus, if you want the justices to pay attention to your brief, you must provide a fair statement of the facts, warts and all, in light of the actual standard of review, not the standard of review you wished applied.
Failing to provide a fair statement of facts based on the relevant standard of review, as typically occurs when the trial attorney writes the appeal, risks not only having the justice set aside the brief, but also risks waiving any arguments based on the defective statement of facts. As the appellate courts have stated, “It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.”(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [Internal quotation marks omitted].) Appellants are “required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error assigned is deemed to be waived.” (Ibid. [emphasis in original].) The failure to provide a fair statement of the facts waives any issue relying on those facts. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.)
Even more disastrous, a trial attorney in the appellate court risks sanctions and possible disbarment for failure to provide a fair and complete statement of the facts and provide argument in light of the standard of review and complete citations, including pinpoint citations, to relevant legal authority. (In re S.C. (2006) 138 Cal.App.4th 396, 428.) In re S.C. is an extreme example and no counsel reading this article would resort to the tactics and distortions of that attorney, who was also trial counsel. However, it is worth noting that ignoring the proper standard of review and framing your arguments in light of a different standard of review never helps your client and risks your professional reputation.
Use your discretion wisely.
In order to win where the standard of review is abuse of discretion, you must prove the trial court’s discretion was arbitrary and capricious. While you may believe the court was arbitrary and capricious, making that argument could have consequences beyond this case. Do you ever want to appear in that court again?
All kidding aside, appellate courts are clear that where the trial court’s order granting relief is within its sound discretion, it should not be disturbed “in the absence of a clear showing of abuse of discretion.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Id., at pp. 478-479.) Reversal is unlikely where the standard of review is abuse of discretion.
An appellant who nonetheless chooses to argue an issue where the standard of review is abuse of discretion is relegated to arguing that the standard is not unfettered. (Gamet v. Blanchard(2001) 91 Cal.App.4th 1276, 1283.) Or, the discretion may not be exercised arbitrarily or capriciously and must be “in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275.) Or, the standard does not give “an immunity bath to the trial court’s rulings” or “absolve reviewing courts of the obligation to state a reasoned rule.” (Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1025, disapproved on other grounds in Shamblin, supra, 44 Cal.3d at p. 479, fn. 4.) Or, the trial court’s discretion is subject “to reversal on appeal where no reasonable basis for the action is shown. [Citations.]” (Westside Community for Independent Living, Inc. v. Obledo(1983) 33 Cal.3d 348, 355; see also, Robbins v. Alibrandi(2005) 127 Cal.App.4th 438, 452.)
These arguments are not winning arguments. And the next time the attorney appears in that trial court, perhaps, instead of hearing counsel’s words, the court hears, “arbitrary...capricious...unreasonable...impeding or defeating the ends of substantial justice…”. No matter how much you disagree with the court’s decision, it is exceedingly rare that an order fits into this description.
If an opening brief nonetheless argues abuse of discretion, Respondent’s Brief will have the opportunity to conclude with a reasonable and soothing tone:
Here, as shown, the trial court’s discretion was not arbitrary or capricious, but was instead an “impartial discretion, guided and controlled in its exercise by fixed legal principles.” (Stafford, supra, 64 Cal.App.4th at pp. 1180-1181.) Further, it was “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Ibid.)
If you decide to request oral argument, you may find that questions during oral argument begin and end with the abuse of discretion standard of review. In order for the appellate court to reverse the trial court, it would need to find that the trial judge’s order was arbitrary, capricious, unreasonable, and impeding or defeating the ends of substantial justice. The appellate court is likely to affirm.
Acknowledge bad facts.
Now that you have been convinced not to file an appeal where the standard of review is abuse of discretion, what about the substantial evidence standard of review? Arguing the substantial evidence standard of review is not much better than arguing the abuse of discretion standard of review.
First, the burden of proof in the trial court is now irrelevant--where the standard of review is substantial evidence, an appellate court’s assessment of “the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Second, substantial evidence is evidence that is “reasonable, credible, and of solid value” such that a reasonable trier of fact could make such findings. (Ibid.) The appellate court has no power to reevaluate the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. (Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, reh'g denied (Mar. 11, 2015).) The trier of fact’s judgment regarding the credibility of the witnesses and factual findings are accepted as true, and the appellate court may only decide if this evidence supports the conclusions reached by the trial court. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.)
In other words, appellant must argue that the trial court incorrectly applied the law, because the facts are set by the trial court’s actual and implied findings. Thus, the likelihood of a reversal when the standard of review is substantial evidence is arguably only slightly higher than under the abuse of discretion standard. At least counsel does not need to argue that the trial court was arbitrary or capricious!
As an appellant, you want to find an issue that is subject to de novo review. Your chances of prevailing are much higher because the appellate court independently reviews the record, interprets statutes, and determines pure questions of law. Under the independent standard of review, “[t]he appellate court is not bound by the trial court's stated reasons for its ruling on the motion, as the appellate court reviews only the ruling and not its rationale.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 457, as modified (July 22, 1998).) It is not bound by the trial court’s interpretation of pure issues of law. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166.)
The statement of the facts depends on the type of matter appealed. For instance, in appeals from summary judgment motions, the court considers ”all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) In an appeal from the sufficiency of a complaint, the appellate court only considers the properly pleaded allegations and does not consider anything beyond the complaint except matters which are judicially noticeable. (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 837.) In the application of a statute or constitutional provision to factual findings, the issue may be a mixed question of law and fact. In that situation, the appellate court will apply de novo review to the questions of law, and substantial evidence to factual findings. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800.)
Knowing your standard of review and how it applies to your case is crucial in setting up the facts and the issues in your appeal. A misstep will lose your appeal.
Don’t switch your standards.
I have seen trial attorneys handling their own appeals try to turn an abuse of discretion or substantial evidence standard of review into an independent standard of review. It didn’t work for them and it won’t work for you. Even if the respondent doesn’t point out the proper standard of review, the appellate court will find it. The importance of understanding the standard of review and its implications on the briefing and oral argument cannot be overestimated. The more time you spend in trial and at the beginning of your appeal to set the stage and do the research, the better you will be at evaluating your chances of success on appeal and how to set up your briefing and oral argument to maximize the likelihood of success.