Can I Win My Appeal (Part I: Standards of Review)

Can I Win My Appeal? (Part I: Standard of Review)

O.K., you’ve determined that you have an appealable order or judgment, so you can file an appeal.

The next question is can you win your appeal?

This depends on a number of factors, which will be discussed in this and in future posts. In this post ,we will discuss one the most fundamental factors determining the likelihood of success of an appeal: the applicable standard of review.

Clients are often surprised to learn that the appeal process is in no way a re-trial and the appellate court will not re-weigh the evidence or make determinations on witness credibility. The appellate courts are there primarily to address errors of law on the part of the trial court and they will do so only under strict parameters, among which is the standard of review.

The standard of review acts as “the compass that guides the appellate court to its decision. It defines and limits the course the court follows in arriving at its destination.” People v. Jackson (2005) 128 Cal. App. 4th 1009, 1018. In other words, it answers the question of how much freedom the appellate court will have to overturn a decision of the trial court.

Abuse of Discretion: This standard of review applies where a decision is placed within the trial court’s “discretion.” These include many of the most common decisions made by the trial courts including decision on evidentiary objections during trial, the grant or denial of preliminary injunctions before trial, pre-trial rulings on discovery, requests for continuance, the amount of attorney’s fee awards and many more.

The caselaw is tends to wax poetic when describing level of error that must be found for the trial court’s discretionary decisions to be disturbed or reversed. In such cases, we are told, the trial court’s decision will stand unless the reviewing court finds a “clear case of abuse” and a “miscarriage of justice” resulting from the decision. Discretion is abused when the decision “exceeds the bounds of reason.” And so on…

However, this does not mean that the trial court can do whatever it wants and that an appeal has no chance for success. Judicial discretion is defined as “sound judgment” applied “according to the rules of law.” Lent v. Tilson (1887) 72 Cal. 404. Furthermore, such discretion “implies the absence of arbitrary determination, capricious disposition or whimsiscal thinking.” Todd v. Thrifty Corp. (1995) 34 Cal. App. 4th 986, 990.

Thus, in cases of judicial discretion an appellant faces an uphill battle. But in clear cases of abuse or arbitrary decisionmaking, the appellant can still succeed on appeal.
Substantial Evidence: Whenever the trial court’s ruling depended on its determination of factual issues, the court of appeal will only reverse the decision on a showing that there was no “substantial evidence” supporting the decision. This applies to any finding of fact, whether by the court or by the jury. The application of this level of review is driven by the fact that appellate review is primarily intended to correct errors of law rather than fact.

On a review for substantial evidence, the trial court’s ruling must be affirmed “even if the reviewing justices personally would have ruled differently had they presided over the proceedings below.” Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 874. As long as the trial court had sufficient basis to support the decision based on the facts presented to it, the appellate court “has no power to substitute its own deductions” for those of the trial court and must affirm the ruling.

In other words, as long as there was some substantial evidence to support the conclusion of the trial court, the decision will still stand. Under this standard, even if there is conflicting evidence, or conflicting inferences that can be drawn from the evidence, the judgment should be upheld. Credibility determinations will likewise be left to the trial court.

Not everything will count as “substantial evidence,” though. The court of appeal must determine whether the decision was “reasonable… in light of the whole record,” rather than merely cherry-picking isolated points supporting the ruling. Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634, 652. A “mere scintilla” of evidence will not be sufficient to support affirmance of the decision.

Nonetheless, like the abuse of discretion standard, above, the appellant clearly faces an uphill battle in trying to prove that the decision of the trial court lacked sufficient evidence to support its decisions and should recognize this reality when considering an appeal.

Independent Review (De Novo): De Novo or Independent review is where the appellant finds him or herself on the best terrain for appeal. Independent review applies to questions of law, which is supposed to be the appellate court’s core area of competence. As such, the court of appeal “independently” reviews the trial court’s decision with no special deference. It decides the issue anew, i.e., “de novo.”

This applies to the proper interpretation of statutes, the State and US constitutions, prior caselaw, and even many cases involving the interpretation of written contracts.

Presumption in Favor of Appellant: Sometimes, even within the context of the above standards of review, the deck is stacked in favor of the appellant.

For example, where a judgment has been rendered against the appellant on the basis of pleadings alone such as on a demurrer of motion for judgment on the pleadings, the trial court and the subsequent reviewing court are required assume the truth of all facts properly pleaded by the appellant and reviews the decision de novo.

When a judgment has been rendered against the appellant on summary judgment de novo review also applies, with the addition that the court of appeal views the motion and evidence in the light most favorable to the appellant against whom summary judgment was ordered. “Thus even though it may appear that a trial court took a “reasonable” view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.” Sandell v. Taylor-Listug (2010) 188 Cal. App. 4th 297, 308 (cites and quotes omitted.)

Where a judgment has been entered notwithstanding the verdict, i.e., where the trial judge finds that the jury verdict must be rejected, the court of appeal will reverse the trial court’s decision and reinstate the jury’s verdict as long as the jury’s verdict was supported by “substantial evidence.” Similarly an order for nonsuit will be reversed as long as substantial evidence supports the appellant’s case.

When an appellant is claiming that the judge gave inaccurate jury instructions, or refused to give an appropriate instruction, the appellate court will also generally view the evidence in the light most favorable to the appellant.

So, in sum the answer to “Will we win our appeal?” may depend on what level a review applies to the particular type of decision being challenged.

As always, these posts are here to offer general descriptions of the law and are not legal advice. Legal advice should come from a live lawyer, not a website.

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