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Monday
Aug242009

On to the substantial evidence standard of review






The substantial evidence standard of review  applies when the appealable order or judgment involves the trial court’s determination of disputed fact issues.   It is frequently raised when a trial has been concluded and the jury or court found in favor of one party over the other based on the evidence presented.  This ground may also arise when the trial court or jury resolves any factual dispute. 


Simply stated, the appellate courts are bound by the trial court’s resolution of disputed factual issues and must affirm the judgment so long as the judgment is supported by “substantial evidence.”  (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) 


Of all the standards of review, this standard is probably the weakest.  Reversals are rare, although not impossible, and as noted in Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 678, “[d]efendants raising a claim of insufficiency of the evidence assumes [sic] a daunting burden.

Monday
Aug172009

Some final thoughts on abuse of discretion






      As you can tell, the appellate courts give considerable deference to the trial court in making discretionary rulings, especially when there are several permissible options available to the lower court.  This standard of review also presents a tough challenge on appeal, but as noted above, the chances of success are increased when the ruling goes outside applicable principles of law and results in a miscarriage of justice.  At the trial level, the attorney must show how the court’s ruling conflicts with those principles of law, and also, how the ruling will result in prejudicial error.


      In Estate of Gilkison (1998) 65 Cal.App.4th 1443, the court described a challenge based on abuse of discretion:


“An attorney who prosecutes an appeal from an order addressed to the trial court’s sound discretion is confronted with more than a daunting task.  This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War.  General Hood did not succeed.”


(Id. at p. 1448.)


 


 

Sunday
Aug092009

More on the abuse of discretion standard of review









Here's a comprehensive explanation of the abuse of discretion standard of review in Horsford v. Board of Trustees of State California University (2005) 132 Cal.App.4th 359, 393:


“This description of the standard is complete, however, only if ‘beyond the bounds of reason’ is understood as something in addition to simply ‘irrational’ or ‘illogical.’  While an irrational decision would usually constitute an abuse of discretion the legal standard of review encompasses more than that:  ‘The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action . . .’  Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.’ . . . For example, a court could be mistaken about the scope of its discretion and the mistake could be entirely ‘reasonable’ – that is, it adopts a position about which reasonable judges could differ.  But a reasoned decision based on the reasonable view of the scope of discretion is still an abuse of judicial discretion when it starts from a mistaken premise, even though nothing about the exercise of discretion is, in ordinary-language use of the phrase, ‘beyond the bounds of reason.’ . . . In other words, judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion.”


(Id. at p. 393; citations omitted.)  In simpler terms, “‘A trial court’s exercise of discretion will be upheld if it is based on a ‘reasoned judgment’ and complies with the ‘ . . . legal principles and policies appropriate to the particular matter at issue.’”  (Colur-Vue, Inc. v. Abrams (1996) 44 Cal. App.4th 1599, 1603.) 


          As you might guess, appellate attorneys generally prefer an independent review so that the appellate courts will pay less deference to the trial court's "reasoning."


 


 






Wednesday
Aug052009

DRI Appellate Advocacy Seminar

If you want to learn about appellate law from some of the pros while enjoying the beauty of La Jolla, consider the DRI Appellate Advocacy Seminar, which will be held on November 5-6, 2009 at the Hilton La Jolla Torrey Pines.  Unlike seminars that only feature local talent, this two-day program calls on some top lawyers, justices, and judges from around the country to share their wisdom.  It touches on issues involving both the state and federal systems.  I think it is a great way to meet others who are involved in appellate law and to compare ideas.  While I could list some of the seminars, I am going to direct you to "the (new) legal writer," which includes links for the brochure and bios for the panel of speakers. Here's the link.
Sunday
Aug022009

When do you file your notice of appeal?

In Bi-Coastal Payroll Services, Inc. v. California Insurance Guarantee Association (2009) 174 Cal.App.4th 579, the Second Appellate District, Division Five, held that the plaintiffs' duty to file the notice of appeal arose from service of notice of entry of judgment, and not service of the trial court's earlier minute order.

In Bi-Coastal,  the plaintiff voluntarily dismissed a cause of action after the trial court sustained a demurrer without leave to amend as to several other causes of action. The parties then stipulated to entry of judgment, which was accepted by the trial court in a minute order, which also ordered entry of judgment.  The minute order was served on the parties by the clerk.  Plaintiffs then gave formal notice of entry of the judgment and filed a notice of appeal.

The operative rule in this situation is California Rules of Court, Rule 8.104(a), which sets forth the dates for filing a notice of appeal.  Generally, a party has 180 days after entry of judgment; however, that period of time can be cut down to 60 days after either a party or the clerk serves notice of entry of judgment.  That notice can be in the form of a document entitled "Notice of Entry" of judgment or it can be accomplished by serving a file-stamped copy of the judgment, which isn't required to have any language that notice of entry of judgment is intended.

The minute order mailed out by the clerk in Bi-Coastal was not entitled "Notice of Entry" of judgment but rather, "Court Order re:  Stipulated Judgment."  Nor did the minute order give notice of entry of judgment because it was not file-stamped as required by Rule 8.104(a)(1).  The fact the minute order contained language of "notice of entry of order" was not sufficient because the minute order had a different title and expressly required plaintiffs' attorney to give notice.

The court quoted language, stating, "'Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.'"  (Id. at p. 586.)  I wish it were that easy.  Attorneys frequently call to seek help in calculating when the notice of appeal must be filed.  It's not always clear and all relevant documents should be examined.  For instance, some orders are simply orders while others are orders combined with judgments.  Some minute orders appear complete while others require the preparation of formal orders.  A party may prepare a document entitled a "Notice of Entry of Judgment," which seems self-explanatory but the service of a file-stamped judgment can serve the same purpose without indicating its intent.  All can have an impact on the date the notice of appeal is due.

Of course, the easiest advice is to tell the appealing party's attorney to take the earliest date and file the notice of appeal within 60 days of that date.  A party can never be late in that instance.   In any case, the due date for the notice should be calculated immediately and California Rules of Court, rules 8.104 and 8.108 should be carefully examined to ensure compliance.