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Two recent unpublished cases highlight the need to identify the proper standard of review for your appeal.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.








Don’t Hold Back

We recently represented the respondent in an appeal to the appellate division of the superior court. When the appellant tried to raise a new issue in the reply brief, we objected, and the Court agreed:

In its opening brief, Plaintiff Yellowbook only argued that the trial court erred by granting relief from default because the motion to set aside was filed more than six months after entry of default. However, Stone Defendants correctly responded that it also sought mandatory relief and for such relief, the six month time frame runs from entry of judgment. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-297.) While Plaintiff Yellowbook argues in reply that mandatory relief does not apply, the Court will not consider that point, as Plaintiff Yellowbook failed to show good reason for failing to raise it in its opening brief. (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322.) The trial court’s grant of the motion to set aside the default and default judgment is affirmed.

So don’t hold something back until your reply brief, thinking you will gain some advantage by having the “last word.” The Court probably will just ignore your late claim.

No Help for Pro Per Appellant

In an unpublished case yesterday from San Diego, In re Marriage of Fields & Cook (D063832), the Court not only reiterated the burdens faced by all appellants but also reminded pro per appellants the Court will not do their job for them:

As we have noted, an appellant has the burden of providing an adequate record and of showing that error occurred and that it was prejudicial.  (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)  Being self-represented does not reduce these burdens.  (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)  In appeals challenging discretionary trial court rulings, an appellant has the burden of making a clear showing of abuse of discretion.  (Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1077.)  The appellate court is not obliged to search the record to find support for the appellant’s contentions.  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [noting one “cannot simply say the court erred, and leave it up to the appellate court to figure out why”].)  Court rules also require that each point be stated “under a separate heading or subheading summarizing the point.”  (Cal. Rules of Court, rule 8.204(a)(1)(B).)

Cook does not state his arguments in separate headings nor does he identify specific instances of prejudicial error by the family court.  In addition, at the RFO hearing in the family court, Cook’s counsel did not raise many of the issues Cook raises in propria persona on appeal, including Cook’s claim of judicial bias.  As such, Cook has forfeited his right to appeal on a number of issues.  (See Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.)  We nonetheless will exercise our discretion and reach the merits of the issues he raises, where appropriate.

The Court did discuss several of the issues Cook raised, possibly in an attempt to forestall further litigation in the trial court, but rejected them all.  Pleas of “I’m not a lawyer, you Honor.  I’m doing the best I can,” and attempts to convince a Court of Appeal to rule in your favor because you have been wiped out financially by the opposition, requiring you to appear pro per, are high speed train to a loss.  If your case is worth appealing, it is worth finding an appellate attorney to do it correctly.  Failing that, spend some long hours in the law library and on-line reviewing practice guides so you can comply with the basic appellate rules and practices.

The Second District in Los Angeles has helpful information:

Ford Faux Pas

Perusal of unpublished cases can be enlightening.  Bettenhausen v. Ford Motor Company (C071978) April 1, 2014, shows us it is not just the “little guy” who can benefit from specialized appellate expertise. There, Ford appealed from an order awarding $391,433.22 in attorney fees in a “lemon law” action but, according to the opinion, had not filed a written opposition in the trial court, although trial counsel did seek a continuance to file that opposition.  Ford then secured new counsel, who first moved to vacate the award, but after filing a notice of appeal.  The trial court denied that motion as it had lost jurisdiction (CCP 916), but that ruling was not attacked in the Court of Appeal.

In turning to the merits of the appeal from the attorney fee order, the court’s introduction foreshadowed the result:  We presume court orders are correct. [Citations.] As the appellant, Ford bore the burden to provide a record supporting its claims of error.  “To the extent the record is incomplete, we construe it against [Ford].” [Citation.]

The Court explained there was no reporter’s transcript of the hearing on the motion for attorney fees, and it was Ford’s duty (as the appellant) to provide a settled statement to support its appellate claims. “It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error. [Citations.] Here, defendants should have augmented the record with a settled statement of the proceeding. [Citations.] Because they failed to furnish an adequate record of the attorney fee proceedings, defendants’ claim must be resolved against them.”  [Citation.]

The Court went on to reject Ford’s claim the order could be deemed “excepted to,” finding the appellant was confusing “appealability with reviewability,” as well as adding in brief comments about the jurisdiction of a trial court to rule on a motion to vacate after a notice of appeal had been filed and reiterating new issues could not be raised on appeal.

Ford’s appellate counsel may have been attempting to make the best of a bad situation which was not remedial.  Who knows without reading the record?  The Court of Appeal did indicate a settled statement procedure was available, which increasingly will be necessary in these days of hearings sans reporters.  The other point here is that procedure matters, and litigants–from powerful corporations on down the most humble– can benefit from specialized appellate expertise so as to put your best foot forward and attempt to make that silk purse out of your sow’s ear of a case.

Review Your Standard of Review

In People v. Durst, C071233, March 28, 2014, the Third District published a reminder of the importance of the standard of review, taking counsel to task to the extent of ruling a Miranda argument forfeited, although eventually addressing the merits (doubtless to forestall a potential IAC claim).  The Court’s discussion did not bode well for appellate counsel, beginning:

In arguing in his opening brief that the statement should have been excluded, defendant disregards the trial court’s crucial findings concerning the facts. Most importantly, defendant relies on a transcript of his statements that the trial court expressly found to be unreliable. This appellate strategy forfeits review of the issue.

Review of a trial court’s ruling concerning the admissibility of a defendant’s statement is a two-part analysis. “[W]e accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. [Citation.] But we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained. [Citation.]” [Citation.]

When the appellate standard is substantial evidence review, as it is here with respect to the trial court’s factual findings, the appellant bears the burden of showing that no substantial evidence supports the challenged factual findings.  [Citations.] Failure to set forth the evidence most favorable to the factual findings – or, as in this case, to acknowledge that the factual findings even exist, along with supporting evidence – results in forfeiture of the contention that substantial evidence does not support the factual findings. [Citation.]

The Court goes on to point out the brief relied on a “nonexistent circumstance” since the trial court had specifically rejected a fact asserted at trial, recounting the trial court’s various factual findings and rulings contrary to the defendant’s position at trial, concluding: “The effect of defendant’s appellate strategy is forfeiture, not persuasion.”

It is one thing to argue the trial court proceedings in the most favorable possible light, looking for chinks in “substantial evidence” armor.   But the emphasis must be on possible, with “possible” considered in the context of the relevant standard of review.  Otherwise you may find yourself explaining to the Court why your argument should not be forfeited, and then explain to the paying client why they should pay you for an argument the Court refused even to consider.







Hobby Lobby lesson

Appellate practitioners can glean an important lesson from yesterday’s Hobby Lobby argument: Beware of raising arguments which clearly are not going to be productive.

The government’s merits brief led off with the assertion: “RFRA does not grant free-exercise rights to for-profit corporations.” Although standing arguments can result in a “home run” in the sense the other side is kicked out of court for procedural reasons, Solicitor General Verrilli ended up spending an inordinate amount of time responding to questions concerning his standing argument such as:

Justice Scalia: . . .  There is not a single case which says that a for profit enterprise cannot make a freedom of religion claim, is there?

Although appeals generally are decided based on briefing, rather than oral argument, you don’t want to waste your limited argument time on loser issues either.  Once you brief an issue, the Court can hammer you on it all it wants, detracting from the limited time you have for your main points.

transcript here:

for briefing, see Becket fund site:


Falcon v. Long Beach Genetics (D062807) March 21, 2014

In this published case, the Court not only shoots down an appeal from a summary judgment motion, but first takes the lawyer to task for poor briefing, both in the trial court and on appeal:

We set out the undisputed material facts as ascertained from the parties’ moving and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327) and state other facts and draw inferences from them in the light most favorable to plaintiffs.  (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)  Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs’ claimed disputes as to defendants’ enumerated material facts pertaining to the section 47(b) privilege.  Plaintiffs’ opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence.

To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation.  Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C).  We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment.  (See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5 [“The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court.”]; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1025.)

Substantively, the case involved a couple who had obtained a DNA test at no cost through the San Diego County Superior Court after a the County initiated a paternity action.  Long Beach Genetics determined Dad was not the dad, but in reality he was;  the lab had mixed up the data, prompting a negligence action, which was dispensed with at the trial court by summary judgment.

The Court of Appeal held the litigation privilege (Civ. Code 47, subd. (b)) applied because “DNA testing was sought to assist County in the then pending proceeding to ascertain minor’s paternity; defendants’ acts in conducting the test and communicating its results plainly furthered that goal, and had some logical relation to the action.”  In addition to elaborating on the privilege, the opinion contains a helpful recitation of summary judgment procedural requirements (and some nice law if you are defending a deficient summary judgment on appeal).

So, aside from the fact a question of damages appears questionable to me, as the child really was Dad’s biological child, the moral is “you get what you pay for,” and if you want to sue someone for negligence, pay for your own test.  And also, get your paperwork in order.