Is Your Appeal up to Standards?  

Two recent unpublished cases highlight the need to identify the proper standard of review for your appeal.  In Curtesy Oil Co., Inc. v. Basidiq (Oct. 23, 2014) F068069 the Court rejected a claim the evidence at trial had been insufficient to support a factual finding because the claim was improbable:

Findings of fact as to witness credibility are difficult to challenge successfully.  Such findings are given great deference by appellate courts and appellants are confronted with one of the most demanding tests for establishing error.  Specifically, an appellate court will reject a credibility finding only if the testimony is incredible on its face, inherently improbable or wholly unacceptable to reasonable minds.  (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 [a trial court’s credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable]; see People v. Jones (2013) 57 Cal.4th 899, 963-964 [testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable].)  Thus, showing testimony was merely improbable is insufficient to establish a credibility finding was erroneous.  (Consolidated Irrigation Dist. v. City of Selma, supra, at p. 201.)  Instead, “‘[t]he evidence must be physically impossible or obviously false without resorting to inference or deduction.’ [Citation.]”  (Ibid.)

In this appeal, Basidiq’s opening brief does not refer to the specific tests for overturning a trial court’s credibility finding.  Instead, Basidiq refers to the rule that “a trier of fact may not indulge in inferences rebutted by clear, positive and uncontradicted evidence.  [Citation.]”  (Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 383.)  In Basidiq’s view, the trial court inferred Olesen’s testimony was credible and her testimony was not believable despite the clear, positive and uncontradicted evidence that the alleged gasoline deliveries were not made.  The evidence Basidiq refers to is the unsigned delivery receipts for the 13 fuel shipments. 

As to the trial court’s finding that the testimony of Olesen was credible, we will defer to that finding because the matters asserted in that testimony were not physically impossible or obviously false.  (Consolidated Irrigation Dist. v. City of Selma, supra, 204 Cal.App.4th at p. 201.)  For instance, it is physically possible that gasoline was delivered by Curtesy Oil without the delivery person obtaining a signature on the delivery receipt.  The primary consequence of this court’s acceptance of the finding that Olesen’s testimony was credible is that testimony becomes part of the evidence evaluated to determine if substantial evidence supports the trial court’s findings that Basidiq did not pay for $29,784.85 worth of fuel delivered by Curtesy Oil.

So as long as some reasonable inference can be drawn which supports the factual finding, the Court of Appeal will not disturb the judgment. Contrast this with Zeiny v. Good Samaritan Hospital (Oct. 23, 2014) H039977, in which the trial court had granted the defendant’s motion for judgment on the pleadings in a case in which Mr. Zeiny, who had attempted suicide and was being treated for depression, believed he was being targeted by “CIA renegade individuals,” who were conspiring to terminate his employment.  He further believed a doctor employed by defendant hospital was in on the conspiracy and had offered the plaintiff a “deal” on behalf of the CIA agents to get Zeiny disability benefits if he would leave the country.  Plaintiff alleged hospital personnel asked the plaintiff questions about these CIA agents, triggering anxiety, which then caused him to leave the hospital, after which he attempted suicide again.

In opposition to the hospital’s motion for judgment on the pleadings, Zeiny claimed he had been wronged “‘by the interference of the CIA renegade agent’s with Plaintiff’s medical treatment.'”  The trial court granted the hospital’s motion on the basis Zeiny was asserting someone else was the wrongdoer.

The Court of Appeal reversed, noting the claim was actually whether or not the hospital had breached its duty of care by questioning the patient about “the renegade CIA agents,” conduct which to the Curt seemed “relatively innocuous.”  However, the Court noted whether this constituted a breach was a matter for expert medical testimony, a factual issue which could not be resolved at the pleading stage.

So in Curtesy Oil a conclusion which may have been improbable was affirmed while in Zeiny an assertion which appeared on its face to be improbable, i.e., the hospital had breached its duty by questioning a patient concerning his apparent delusion, was the basis for a reversal.  The key is the stage of the proceeding and the standard of review, which must be the starting point for analyzing any potential appeal.