Using The Most Favorable Standard of Review For Your Appeal
by
Sara Baxter on Sep. 22, 2014
Lawsuit & Dispute Lawsuit Civil & Human Rights Constitutional Law Business
Summary: Understanding how to shape your appeal in order to use the most favorable Standard of Review and have the best chance for success.
THE MOST FAVORABLE STANDARD OF REVIEW APPLIES WHEN A
PARTY HAS NOT HAD AN OPPORTUNITY TO PROVE THEIR FACTS
By Joseph G. Baxter, Civil and Criminal Appellate Specialist
By Joseph G. Baxter, Civil and Criminal Appellate Specialist
1. Constitutional background - Except for exceptional circumstances (e.g., review of CCP § 664.6 motions enforcing a “before the court” settlement agreement), a party has a due process right to an evidentiary trial of factual questions bearing on a final judgment. See, e.g., Mancina v. Hoar (1982) 129 Cal.App.3d 796, 801; Pianka v. California (1956) 46 Cal.2d 208, 212; Callahan v. Chatsworth Park (1962) 204 Cal.App.2d 597, 602; Dvorin v. Appellate Department (1975) 15 Cal.3d 648, 651; Kelly v. New West Fed. Savings (1996) 49 Cal.App.4th 659, 677; Jenkins v. McKeithen (1969) 395 U.S. 411, 429.
2. Thus, when a party has not been allowed a trial of factual questions, the party may be entitled to an appellate standard of review which presumes the truth of evidence in appellant’s favor.
3. This rule applies to the following types of cases:
a. Appeal of a demurrer dismissal or judgment on the pleadings.
b. Appeal of a dismissal after “objection to all evidence.”
c. On appeal after summary judgment.
d. On appeal from Judgment NOV.
e. On appeal from nonsuit or directed verdict.
f. On appeals alleging that the trial judge gave an erroneous jury instruction or improperly refused a particular instruction. This rule does not apply where appellant requested the alleged erroneous instruction.
g. Where the granting of a motion in limine “was tantamount to a nonsuit,” the standard of review is the same as for a nonsuit. Thus, in Edwards v. Centex (1997) 53 Cal.App.4th 15, the Court of Appeal reviewed a judgment founded upon an in limine ruling which excluded “the bulk of the evidence upon which appellants base their causes of action for fraud and willful misconduct.” Id. at 27. The Court held that since granting such a motion was “the functional equivalent of an order sustaining a demurrer to the evidence,” and “tantamount to a nonsuit,” the pleadings must be accepted as true, the record must be viewed in the light most favorable to the plaintiffs, and every legitimate inference which may be drawn from that evidence must be drawn in the plaintiffs’ favor. Id. at 26-28. Accord, Estate of Lances (1932) 216 Cal. 397, 400.
4. In determining whether plaintiff’s evidence is sufficient under this standard of review, the court may not weigh the evidence or consider the credibility of a witness. Instead, “the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” Carson v. Facility Development Co. (1984) 36 Cal.3d 830, 838-39 (emphasis added).
5. When this standard or review is applicable, the substantial evidence rule is essentially reversed. Factual contentions made by the appellant in the trial court, applicable to the disputed factual contentions, will generally be accepted so long as there is “substantial evidence” to support them. The testimony of a single witness may constitute substantial evidence. Marriage of Mix (1975) 14 Cal.3d 604, 614; Kerl v. Board of Medical Quality Assurance (1986) 1989 Cal.App.3d 1040, 1052.
6. Where this standard of review applies, counsel for appellant has far greater leeway to emphasize favorable facts in counsel’s Statement of Facts. See, e.g., GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 423. But if two or more issues are raised on appeal and each invokes a different rule for reviewing the facts, appellant’s statement of facts should provide all information necessary to determine the issues.
3. This rule applies to the following types of cases:
a. Appeal of a demurrer dismissal or judgment on the pleadings.
b. Appeal of a dismissal after “objection to all evidence.”
c. On appeal after summary judgment.
d. On appeal from Judgment NOV.
e. On appeal from nonsuit or directed verdict.
f. On appeals alleging that the trial judge gave an erroneous jury instruction or improperly refused a particular instruction. This rule does not apply where appellant requested the alleged erroneous instruction.
g. Where the granting of a motion in limine “was tantamount to a nonsuit,” the standard of review is the same as for a nonsuit. Thus, in Edwards v. Centex (1997) 53 Cal.App.4th 15, the Court of Appeal reviewed a judgment founded upon an in limine ruling which excluded “the bulk of the evidence upon which appellants base their causes of action for fraud and willful misconduct.” Id. at 27. The Court held that since granting such a motion was “the functional equivalent of an order sustaining a demurrer to the evidence,” and “tantamount to a nonsuit,” the pleadings must be accepted as true, the record must be viewed in the light most favorable to the plaintiffs, and every legitimate inference which may be drawn from that evidence must be drawn in the plaintiffs’ favor. Id. at 26-28. Accord, Estate of Lances (1932) 216 Cal. 397, 400.
4. In determining whether plaintiff’s evidence is sufficient under this standard of review, the court may not weigh the evidence or consider the credibility of a witness. Instead, “the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” Carson v. Facility Development Co. (1984) 36 Cal.3d 830, 838-39 (emphasis added).
5. When this standard or review is applicable, the substantial evidence rule is essentially reversed. Factual contentions made by the appellant in the trial court, applicable to the disputed factual contentions, will generally be accepted so long as there is “substantial evidence” to support them. The testimony of a single witness may constitute substantial evidence. Marriage of Mix (1975) 14 Cal.3d 604, 614; Kerl v. Board of Medical Quality Assurance (1986) 1989 Cal.App.3d 1040, 1052.
6. Where this standard of review applies, counsel for appellant has far greater leeway to emphasize favorable facts in counsel’s Statement of Facts. See, e.g., GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 423. But if two or more issues are raised on appeal and each invokes a different rule for reviewing the facts, appellant’s statement of facts should provide all information necessary to determine the issues.
RELATED APPELLATE RULES
1. “Reversible Error Per Se” rule where there has been a denial of a fair hearing or the denial of request for a jury trial on jury triable issues.
2. The erroneous denial of a party’s right to testify or present evidence establishing its case, or the denial or undue restriction of the right to cross-examine witnesses, is reversible per se. Kelly v. New West Fed. Savings (1996) 49 Cal.App.4th 659, 677; Fremont Indemn. Co. v. WCAB (1994) 153 Cal.App.3d 965, 971. But see, Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432.
3. Relationship between the above appellate rules and appellate rules relating to the exclusions of broad classes of evidence. See, e.g., Beneficial, etc. Ins. Co. v. Kurt & Hitke & Co. (1956) 46 Cal.2d 517, 522 (offer of proof not required; broad offers also sufficient); Gustav Heinman v. Los Angeles (1947) 30 Cal.2d 746, 757; Lawless v. Calloway (1944) 24 Cal.2d 81, 91-92; Montez v. Superior Court (1970) 10 Cal.App.3 343, 351.
2. The erroneous denial of a party’s right to testify or present evidence establishing its case, or the denial or undue restriction of the right to cross-examine witnesses, is reversible per se. Kelly v. New West Fed. Savings (1996) 49 Cal.App.4th 659, 677; Fremont Indemn. Co. v. WCAB (1994) 153 Cal.App.3d 965, 971. But see, Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432.
3. Relationship between the above appellate rules and appellate rules relating to the exclusions of broad classes of evidence. See, e.g., Beneficial, etc. Ins. Co. v. Kurt & Hitke & Co. (1956) 46 Cal.2d 517, 522 (offer of proof not required; broad offers also sufficient); Gustav Heinman v. Los Angeles (1947) 30 Cal.2d 746, 757; Lawless v. Calloway (1944) 24 Cal.2d 81, 91-92; Montez v. Superior Court (1970) 10 Cal.App.3 343, 351.
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