Using the standard of review to craft a persuasive brief

Although naturally a part of your legal discussion, using the standard of review in the statement of facts is a way to craft a persuasive brief on appeal

2024 December

As political strategist James Carville memorably quipped to Bill Clinton’s campaign staff when identifying the single issue about which voters are most concerned: “It’s the economy, stupid.” In the appellate world, the single issue about which courts are most concerned is equally clear: “It’s the standard of review.” Determining the proper standard of review is the “threshold issue” in every appeal. (Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611.) It is “the compass that guides the appellate court to its decision.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)

Whether an appeal is in federal or state court, the standard of review impacts not only the way in which appellate counsel must structure the legal argument, but also dictates the way in which the facts should be presented. In this article, we look at the various standards of review – substantial evidence, abuse of discretion, and de novo – and analyze under state law how the different standards affect the necessary presentation of the statement of facts.

The substantial-evidence standard of review

The substantial-evidence standard of review applies when an appeal turns on the resolution of disputed facts.  The trier of fact, whether jury or judge, has the province to decide questions of fact, while the appellate court has the province to decide questions of law. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) “In theory, a determination is one of ultimate fact if it can be reached by logical reasoning from the evidence, but one of law if it can be reached only by the application of legal principles.” (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 698, fn. 3.) On appeal, factual determinations, rendered in favor of the party with the burden of proof, are reviewed for substantial evidence. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888; see also Haworth v. Superior Court (2010) 50 Cal.4th 372, 384.) The substantial-evidence standard applies both to jury and bench trials. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.)

The substantial-evidence rule is often expressed as follows: “When a civil appeal challenges findings of fact, the appellate court’s power begins and ends with a determination of whether there is any substantial evidence – contradicted or uncontradicted – to support the trial court findings.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582; see also Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) So long as the factual determination is supported by substantial evidence, the appellate court is required to affirm, “even if the reviewing justices personally would have ruled differently had they presided over the proceedings below, and even if other substantial evidence would have supported a different result.” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)

When a substantial-evidence challenge is raised, the appellant must accurately and objectively set out all relevant and material evidence contained in the record. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531; State of California ex rel. Standard Elevator Co. v. West Bay Builders, Inc. (2011) 197 Cal.App.4th 963, 968, fn. 1; Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 558 [appellants’ failure to provide statement of facts limited to matters in the record warranted sanctions].) “An appellant has the duty to summarize the facts fairly in light of the judgment, and such duty “grows with the complexity of the record.” (Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607.)

An appellant who omits evidence favorable to the respondent “fails to demonstrate any error and [forfeits] the contention that the evidence is insufficient to support the judgment.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408; see also Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1072.) By contrast, a respondent does not face forfeiture concerns and simply must identify the evidence sufficient to sustain the judgment. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 685.)

In a substantial-evidence appeal, the appellate court accepts as true the evidence most favorable to the trial court’s factual determination. (In re Michael G. (2012) 203 Cal.App.4th 580, 585.) All conflicts in the evidence and all inferences will be drawn in favor of the party that prevailed below. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 747.) Witness credibility cannot be challenged on appeal. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479; In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175.)

Failure-of-proof appeals

Failure-of-proof appeals serve as an analog to substantial-evidence appeals.  When the trier of fact concludes, expressly or implicitly, that the party with the burden of proof has failed to sustain it, and the losing party appeals, the appeal is conceptualized as one based on a “failure of proof.” (Ajaxo, Inc. v. E*Trade Financial Corporation (2020) 48 Cal.App.5th 129, 163-164.) On appeal from a determination of a failure of proof at trial, the question on appeal for the reviewing court is “whether the evidence compels a finding in favor of the appellant as a matter of law.” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769-770 (Almanor).) Specifically, the appellate court must determine whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. (Ibid.; see also Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066-1067 (Fabian); Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)

Although failure-of-proof and substantial-evidence appeals are, essentially, the inverse of one another (see Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465), counsel drafting a statement of facts faces a daunting standard of review. The appellate court will “presume the trial court found the [party’s] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] [The appellate court] ha[s] no power on appeal to judge the credibility of witnesses or to reweigh the evidence.”’ [Citation.] ‘The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.] “‘All conflicts, therefore, must be resolved in favor of the respondent.’ [Citation.]” [Citation.]’ [Citation.]” (Fabian, supra, 42 Cal.App.5th at p. 1067; see also Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734.)

In other words, in an appeal following a determination that the party with the burden of proof failed to meet it, “[the appellate court is] . . . guided by the principle that the trial court’s judgment is presumed to be correct on appeal, and [the appellate court] indulge[s] all intendments and presumptions in favor of its correctness. [Citation.]” (Almanor, supra, 246 Cal.App.4th at p. 770.) Consequently, when a party fails to meet its burden on an issue in the trial court, “the inquiry on appeal is whether the weight and character of the evidence . . . was such that the [trier of fact] could not reasonably reject it. [Citation.]” (In re R.V. (2015) 61 Cal.4th 181, 200-201.)

Appeals following a nonsuit, JNOV, or directed verdict

Appeals following a nonsuit, JNOV, or directed verdict invert the substantial- evidence standard of review to the benefit of the appellant.  By contrast, on appeals from a judgment of nonsuit, the appellate court views the evidence in the light most favorable to the appellant. As such, the judgment “‘cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff[,] a judgment for the defendant is required as a matter of law.’ [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 (Carson); see also Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 335.)

In determining whether a plaintiff’s evidence is sufficient to withstand a nonsuit, “the court may not weigh the evidence or consider witnesses’ credibility. Instead, the court must accept as true the evidence most favorable to plaintiff and must disregard conflicting evidence. The court must give to the plaintiff’s evidence all the value to which it is legally entitled, indulging every legitimate inference that may be drawn from the evidence in plaintiff’s favor.” (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1234; see also LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.)

Thus, a judgment of nonsuit must be reversed so long as “there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ . . . .’ [Citations.]” (Carson, supra, 36 Cal.3d at p. 839.) “This healthy skepticism of removing factual questions from juries is inextricably bound to the California Constitution, which preserves ‘inviolate’ the right to trial by jury.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1328, citing Cal. Const., art. I, § 16.)

As with appeals from a judgment of nonsuit, appellate courts employ a favorable standard of review in appeals from a JNOV or directed verdict, viewing the evidence in the light most favorable to the appellant. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 769 [JNOV]; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546 [JNOV]; North Counties Engineering, Inc. v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 920 [directed verdict]; Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 576 [directed verdict].) Accordingly, when appellate counsel is drafting a statement of facts, all evidentiary conflicts must be resolved, and all reasonable inferences must be drawn, in favor of the appellant. The judgment will be reversed if substantial evidence establishes each element of the appellant’s cause of action as supported by the applicable law. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 8:138, p. 8-115.)

In short, the standard of review applicable to nonsuits, JNOVs, and directed verdicts provides appellants a green light to include in the statement of facts all relevant evidence. This is true even if the record contains conflicting evidence or testimony from witnesses who have been impeached.

The abuse-of-discretion standard of review

The abuse-of-discretion standard of review applies to the trial court’s discretionary rulings.  An appeal from a trial court’s discretionary ruling also is recognized as a “daunting task.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448.) Discretion is “abused” only when, in its exercise, the trial court “exceeds the bounds of reason, all of the circumstances before it being considered” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham)) and the abuse is “clear” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331 (Blank)). Moreover, an appellate court must indulge “‘[a]ll intendments and presumptions’” to support the trial court’s order “‘on matters as to which the record is silent, and error must be affirmatively shown. . . .’ [Citations.]” (Denham, at p. 564; Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.)

That said, there are rays of hope. The “discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) An abuse can be shown when the lower court failed to understand the scope of its discretion (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 530) or failed to employ its discretion (Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 786-787). Indeed, if there are no disputed factual matters, the appellate court can independently review the lower court’s ruling as a question of law. (See People ex rel. Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144.)

Once an abuse of discretion is shown, reversal or modification of the challenged judgment or order will not automatically follow unless “prejudice” or a “miscarriage of justice” resulted. (Blank, supra, 39 Cal.3d at p. 331; see also F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108; Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) And, unfortunately, “no,” the appellate court will not “act as counsel for appellant by furnishing a legal argument as to how the trial court’s ruling was prejudicial.” (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)

But this is where the statement of facts in an appellant’s brief can take center stage. Errors in civil trials require the appellate court to “‘determine whether prejudice actually occurred in light of the entire record.’ [Citations.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.) One factor used to establish prejudice is the degree of conflict in the evidence on critical issues. When an appellant makes a strong showing in the factual statement, the appellate court is more likely to conclude it is “reasonably probable” a result more favorable to the appellant would have adhered absent the error. (See People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041; Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 525.) Notably, this is not a violation of the substantial evidence rule because the appellant is not asking the Court of Appeal to reweigh the evidence in determining whether the judgment or order is supported by substantial evidence. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:301, p. 8-221.) Rather, the appellate court is reweighing the evidence in determining the prejudicial effect of a given error. (Ibid., citing Herbert v. Lankershim (1937) 9 Cal.2d 409, 476.)

The de novo standard of review

The de novo standard of review applies when an appeal turns on legal error.  When pure questions of law arise on appeal, i.e., where an appeal does not resolve disputed facts or the appellate court is not required to weigh competing interests, the Court of Appeal employs an independent or de novo standard of review. (Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 802.) Under a de novo standard of review, the appellate court gives no deference to the trial court’s ruling or rationale but resolves the matter anew. When an appeal is subject to a de novo standard, the appellate court is not bound by the trial court’s interpretations and conclusions. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)

Appeals following a judgment of dismissal after a demurrer or judgment on the pleadings assumes the truth of all facts properly pleaded by the appellant

Appeals from a judgment of dismissal after a demurrer or a judgment on the pleadings are reviewed de novo. (Center for Environmental Health v. Perrigo Co. (2023) 89 Cal.App.5th 1, 16.) In a demurrer appeal, the appellate court assumes the truth of all facts properly pled by the appellant as well as those facts subject to judicial notice. (State Department of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 346; Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 281.) The same standard of review adheres in appeals from a judgment on the pleadings. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1347; Stockton News- papers, Inc. v. Members of Redevelopment Agency (1985) 171 Cal.App.3d 95, 99.)

Because the presumption in favor of the respondent is reversed in demurrer and judgment on the pleadings appeals, an appellant can emphasize the favorable evidence in the statement of facts. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:115, p. 8-85.) Again, essentially the substantial evidence rule is reversed, and the appellant can set out the best factual case for its case. (Id. at ¶ 8:75, p. 8-37.)

An appeal following the grant of summary judgment requires a review of the evidence in the light most favorable to the nonmoving party

An appeal following the grant of summary judgment also is subject to independent or de novo review by the Court of Appeal. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206 (Lonicki).) The appellate court reviews the evidence in the light most favorable to the nonmoving party (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 764), and all doubts as to whether there is a disputed issue of material fact are resolved in favor of the party opposing the summary judgment motion (Lonicki, at p. 206; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535).

When reviewing a summary judgment, appellate courts consider “all the evidence set forth in the moving and opposition papers except that to which objections have been made and properly sustained.” (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451-1452; see also State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1035.) As such, when appealing a summary judgment, an appellant should set out all favorable evidence that demonstrates the existence of a triable issue of material fact. (See Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.) Moreover, in evaluating a summary judgment appeal, counsel should challenge adverse evidentiary rulings that resulted in the exclusion of operative facts establishing a disputed issue of material fact.

Appeals following instructional error invert the substantial evidence standard of review to the benefit of the appellant

Instructional error is subject to a de novo standard of review. (E.g., People v. Manriquez (2005) 37 Cal.4th 547, 581; Suffolk Construction Company, Inc. v. Los Angeles Unified School District (2023) 90 Cal.App.5th 849, 869 (Suffolk).)

In an appeal in which the trial judge has given an erroneous jury instruction or improperly refused a proper instruction, reversal is required when “it seems probable” that the error “prejudicially affected the verdict.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983; Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 412.) A “reasonable probability” means only “more than an abstract possibility” that the verdict was erroneously affected. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682, italics omitted.)

In assessing whether prejudice exists, appellate courts view the evidence in the light most favorable to the claim of instructional error. (Suffolk, supra, 90 Cal.App.5th at p. 869; Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 4-5.) Thus, for example, the appellate court assumes the jury might have believed the evidence upon which an instruction favorable to an appellant was predicated and rendered a verdict in the appellant’s favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674; Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 839, 845-846.)

Again, because of this favorable standard of review, an appellant should include in the statement of facts all relevant evidence, even if the record contains conflicting evidence or impeached witness testimony.

Conclusion

The importance of the standard of review to an appeal cannot be overstated. The governing review standard dictates through what lens the appellate court will view your case. Counsel writing appellate briefs, therefore, should provide the applicable standard of review for each issue raised on appeal. But the standard of review should not be confined to the legal discussion section of an appellate brief. Instead, it should be central to the factual statement in a brief and define how that statement is drafted. Writing a statement of facts according to the applicable standard of review could be the persuasive, or perhaps even winning, component of a brief. Seize upon the opportunity to use the standard of review effectively throughout your brief.