This article originally appeared in The Recorder on September 3, 2020.

It will be easier to attack decisions by juries and trial judges that required clear and convincing evidence after the California Supreme Court’s landmark decision on July 27 in Conservatorship of O.B. In view of this change, attorneys should carefully reevaluate the probability of success on appeal in a wide range of cases where facts must be proven by clear and convincing evidence. 

Background

Until last month, there was a split among California appellate courts concerning review of findings that require clear and convincing evidence. One line of decisions maintained that review should proceed just as it does in any other sufficiency of the evidence challenge. These cases reasoned that the heightened standard of proof simply “disappears.” The view was endorsed by Witkin’s treatise on California Procedure: “[I]f the [trial] judge decides in favor of the party with this heavy burden, the clear and convincing test disappears. On appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” But another line of cases rejected that approach, reasoning that it undermines judicial review in cases that involve important rights or are inherently subject to fabrication. The California Supreme Court’s prior messages on the subject were subtle and mixed. 

Heightened Review for Findings That Require Clear and Convincing Evidence

In Conservatorship of O.B, the court resolved the split. Under the new rule, appellate courts must be mindful of the clear and convincing standard; but they do not simply apply it themselves. Instead, they ask whether a reasonable factfinder could have made the challenged finding with the confidence required by the clear and convincing standard. More technically, the appellate court must now review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence from which a reasonable trier of fact could have found it “highly probable” that the fact was true. As with all substantial evidence review, the court of appeal will defer to how the trier of fact may have evaluated credibility, resolved evidentiary conflicts, and drawn inferences. 

Why Heightened Review Makes Sense 

Chief Justice Tani Gorre Cantil-Sakauye wrote the opinion for a unanimous court. As she explained, logic, policy, and precedent require the appellate court to account for the heightened standard of proof. 

Logically, whether evidence is “of ponderable legal significance” cannot be properly evaluated without accounting for a heightened standard of proof that applied in the trial court. The standard of review must consider whether the evidence reasonably could have led to a finding made with the specific degree of confidence that the standard of proof requires, whether that standard of proof is preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. As CACI 201 instructs jurors, clear and convincing evidence “means the party must persuade you that it is highly probable that the fact is true.” This standard must have some relevance on appeal if review of the sufficiency of the evidence is to be meaningful.

Heightened review furthers legislative policy. Standards of proof reflect “fundamental assessment[s] of the comparative social costs of erroneous factual determinations.” The clear and convincing standard is used when particularly important individual interests or rights are at stake. Courts of appeal have a role in “reaffirm[ing] that the interests involved are of special importance, that their deprivation requires a greater burden to be surmounted, and that the judicial system operates in a coordinated fashion to ensure as much.” 

Appellate courts already review the sufficiency of evidence to satisfy a heightened standard of proof in the criminal cases that constitute a major portion of their workload. A criminal conviction must be reviewed in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could have found guilt beyond a reasonable doubt. Courts should have no difficulty doing the same for the clear and convincing standard. 

Cases Potentially Impacted – Not Just Punitive Damage Awards

The most obvious impact of Conservatorship of O.B. will be on appeals from judgments after verdicts that impose punitive damages: Some huge awards may be easier to attack on appeal. 

But the decision will reach most areas of litigation practice. The California Codes (and standard jury instructions) frequently require proof by clear and convincing evidence where the social costs of an erroneous determination are high.

Here is just a sampling of areas where attorneys would be wise to reevaluate the probability of success on appeal. In these cases, the party with the burden of proof at trial will need to work harder to protect a favorable judgment on appeal.

Elder Abuse and Dependent Adult Protection Act

• Findings of neglect, physical abuse, abduction, recklessness, oppression, fraud, malice, ratification and advanced notice to support awards of enhanced remedies of attorney fees and costs, decedent’s pain and suffering, or to support employer liability.

Employment Law

• Findings that an employer would have made the same decision for legitimate reasons to defend a whistleblower retaliation case.

Restraining Orders

• Findings of unlawful harassment to support a civil restraining order 

Contract

• Findings of intentional relinquishment to establish any waiver (e.g. waiver of a condition precedent, waiver of insurer’s right to deny coverage). 
• Findings of agreement to cancel and substitute to establish novation.
• Findings that a written instrument should be reformed based on fraud, mistake or parol evidence

Dependency

• Findings of adoptability to support an order terminating parental rights. 
• Findings that parents fall within a reunification service bypass category.

Property 

• Findings of open, notorious, adverse use to establish a prescriptive easement. 

Probate

• Findings that decedent openly held out putative heir as their child for intestate succession purposes
• Findings of testamentary intent necessary to validate an unwitnessed will
• Findings that a donative transfer to a caregiver or drafter was not the product of fraud or undue influence
• Findings of an agreement to execute reciprocal wills
• The existence and terms of an oral trust of personal property
• Findings that beneficiary survived another beneficiary for purposes of succession.
• Findings of intent that rebuts presumption joint account belongs to the parties in proportion to net contributions.
• Findings that attack the face of a writing (e.g. undue influence to avoid a will, an intent to leave a Totten trust account to someone other than the named beneficiary)

Only A General Rule

Attorneys should also assess whether they have an unusual case for which the new standard does not fit. The court signaled that some findings will need a specially tailored standard of review: “[W]e recognize that different forms of appellate review may apply in certain circumstances when a determination has been made by the trier of fact under the clear and convincing standard of proof.” For example, defamation cases will require an adjusted standard where independent review of the evidence of actual malice is constitutionally required. In rare cases, it may be appropriate to argue that a different standard of review applies, based on the specific rights and policies that are implicated and the purpose and history behind the requirement for heightened proof in that area of law.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Katy Graham is of counsel with the firm. She worked in the Second District Court of Appeal for more than a dozen years and is an advisor to the  Committee on Appellate Courts for the California Lawyers Association Litigation Section and a member of the Section’s Executive Committee. Find out more about Katy and the California Appellate Law Group LLP at www.calapplaw.com.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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