Trusts and Estates
New Standard for Appellate Review of Findings Supported by Clear and Convincing Evidence
By Ciarán O'Sullivan, Esq.
In 2019’s Conservatorship of O.B. the Court of Appeal for the Second District was faced with an argument that some higher standard of review should apply to a trial court factual finding that was required to be supported by clear and convincing evidence.22 The facts of the case are summarized as follows: O.B. had autism spectrum disorder. She lived with her great-grandmother in Lompoc. Her mother T.B., and older sister C.B., who lived in Orange County, petitioned for appointment as limited conservators of O.B.’s person. At trial, O.B. offered the expert testimony of psychologist Dr. Khoie, who opined that O.B. was not a candidate for a conservatorship and had the potential to live independently with support. O.B. also relied on the testimony of the court investigator, who opined that he did not think the conservatorship would benefit O.B. and was concerned about O.B.’s removal from her great-grandmother’s home. O.B.’s great-grandmother testified that the conservatorship would not be in O.B.’s interest since O.B. did not want to live with her mother and sister. On the other hand, T.B. testified that O.B. needed significant assistance with daily tasks, could not care for herself, and was susceptible to undue influence by others. A local Regional Center psychologist has drafted a report recommending the limited conservatorship even though he had not testified. And although she too did not testify, a Dr. Cindy Blifeld had prepared a capacity declaration which concluded that O.B. lacked capacity. The trial court found that the evidence supported granting T.B.’s petition and appointed T.B. and C.B. as limited conservators of O.B.’s person.23
In the recent case of Conservatorship of O.B. (July 27, 2020),1 the California Supreme Court announced a new, less deferential standard of appellate review of trial court findings and judgments that must be supported by clear and convincing evidence. As a result, the chances of obtaining reversal of such findings and judgments on appeal have somewhat improved. The clear and convincing concept arises frequently in trusts and estates litigation. This article discusses standards of appellate review in general; the facts and holding of Conservatorship of O.B.; new standard of review; and how it may affect appeals in trusts and estates cases.
As most practitioners know, the Court of Appeal does not simply retry a case or issue a decision based on how it thinks the trial court should have decided the case in the first place. Rather, our system vests the trial court with the obligation of making factual findings and then applying the law to the facts. At the outset of any appeal, the appellant is faced with the presumption that the trial court’s judgment or order is correct (the “presumption of correctness”).2 Generally speaking, the Court of Appeal is limited to determining whether the trial court made an error of law and does not consider questions of fact.3 However, when no substantial evidence supports a judgment, it is deemed erroneous as a matter of law.4 In effect, this means that the Court of Appeal does, in a sense, review the facts to ensure the existence of substantial evidence to support the judgment where that is the grounds for appeal.5 To ensure consistency in carrying out these functions, courts have developed various “standards of review.” Identifying the appropriate standard of review and tailoring one’s arguments to it are essential in any appeal.6
The Three Main Standards of Review
As relevant to most civil practitioners, including trusts and estates litigators, an appellant will typically be confronted by one or more of the following three standards of review: De Novo or Independent Appellate Review The reviewing court applies this standard to review the trial court’s application of a legal rule to undisputed facts. This standard of review is the least deferential to the trial court’s decision. In fact, when reviewing pure legal decisions, the Court of Appeal gives no deference whatsoever to the trial court’s ruling or the reason for its ruling, but rather decides the matter anew.7 In other words, having the de novo standard of review applied to an appeal puts the appellant in a more favorable position at the outset and, for this reason, appellants often will expend much ink in trying to convince the Court of Appeal to apply this standard.8 Examples of the application of the de novo standard of review particular to trusts and estates cases include interpretation of statutes9 and, where there is no conflicting evidence regarding the settlor’s or testator’s intent, resolving ambiguities in trust instruments and wills.10 Of course, trusts and estates litigators are governed by the civil rules of practice contained in the Code of Civil Procedure unless a specific Probate Code provision applies, which means that de novo review also may apply in a trusts and estates appeal whenever the interpretation of general civil statutes is at issue.11
Abuse of Discretion Many trial court rulings turn on the court’s discretion to act or not act in a certain way. Such decisions are reviewed under the abuse of discretion standard. Under this standard of review, a Court of Appeal will disturb the trial court’s ruling only upon a “clear case of abuse” and “a miscarriage of justice.”12 Discretion is abused only when the trial court “exceeds the bounds of reason” when all of the circumstances before it are considered, or when the trial court’s decision is “so irrational or arbitrary that no reasonable person could agree with it.”13 In cases where the abuse of discretion standard of review applies, the appellant has a tough road ahead. Even though the Court of Appeal may disagree with the trial court’s ruling, the reviewing court will nevertheless uphold the ruling so long as the lower court adhered to the governing rules of law in exercising its discretion.14 Rulings that turn on the court’s discretion abound in probate and civil practices generally. For example, the measure of damages in any breach of trust action is within the trial court’s discretion,15 as is the amount of extraordinary compensation due an executor.16 The same is true of attorney fee awards generally, whether authorized by statute or contract. Rulings on sanctioning or disqualifying an attorney are within the discretion of the trial court and will be reviewed under the abuse of discretion standard of review.
Substantial Evidence Standard This standard applies to any trial court ruling resolving factual disputes. Under this standard of review a factual finding must be affirmed where there is substantial evidence supporting it, even if there is other substantial evidence in support of a different finding.17 This is because the reviewing court does not substitute its judgment for that of the trial court: “That the [trial] court reasonably could have assessed her credibility less favorably or that our court could reasonably make a different assessment of credibility is not sufficient grounds for reversal.”18 The testimony of one witness, even if contradicted, can constitute substantial evidence.19 When combined with the presumption of correctness, and other maxims of appellate review requiring the Court of Appeal to accept the evidence most favorable to the order or judgment and discard the unfavorable evidence, the substantial evidence standard can be fairly described as “the most difficult standard of review to meet.” As one court put it, this is “as it should be, because it is not the function of the reviewing court to determine the facts.”20 As noted, the substantial evidence standard applies in any civil case when a reviewing court reviews the trial court’s resolution of any disputed fact question, whether at trial or otherwise.21 However, as discussed below, the trial courts may need to apply different standards of proof in making factual findings, and this raises the question of what the appropriate standard of appellate review of those findings should be. Put another way, does the trial court’s standard of proof impact the Court of Appeal’s standard of review?
Conservatorship of O.B. and the Standard Applicable to Factual Findings Requiring Clear and Convincing Evidence
The Role of Standards of Review In Appeals
The Court of Appeal Opinion By statute, the standard of proof required for the appointment of a conservator is clear and convincing evidence.24 The default standard of review for factual findings by the trial court is the substantial evidence standard. However, O.B. contended that the Court of Appeal must apply the clear and convincing standard to determine whether substantial evidence supported the judgment. The Court of Appeal rejected her argument, stating that the clear and convincing standard “is for the edification and guidance of the trial court and not a standard for appellate review.” It went on to say that “[t]he sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” Finally, the court stated that an appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears ... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.”25 Applying that rule, and noting that the testimony of one witness, even if contradicted, can constitute substantial evidence, the Court of Appeal held that the mother’s testimony alone could support the trial court’s judgment, especially in light of Dr. Blifeld’s capacity declaration and the Regional Center report favoring the conservatorship.26
The Supreme Court Opinion The California Supreme Court granted review on the following issue: “On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court's order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?” The resulting opinion reviewed the role of standards of proof in our legal system. The default standard of proof in civil cases is the “preponderance of the evidence” standard, which simply requires the trier of fact to believe that the existence of a fact is more probable than its non-existence."27 At the other end of the scale is the “beyond a reasonable doubt” standard, which applies to findings of guilt in criminal cases. Reasonable doubt is “that state of the case, which, after the entire comparison or consideration of all of the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”28 The clear and convincing evidence standard falls somewhere in between. It applies at the trial court level where particularly important individual rights or interests are at stake, such as termination of parental rights, involuntary commitment, and the like.29 It requires a finding of high probability that the fact is true.30
The California Supreme Court compared the differing views of the issue prevailing in the Courts of Appeal. One view—as described by the Second District, in its opinion below—maintains that the clear and convincing standard of proof has no bearing on appellate review for sufficiency of the evidence. The other view accounts for the fact that the clear and convincing standard of proof requires greater certainty than the preponderance standard does.31 Courts adopting the latter view insist that if the more deferential “substantial evidence” standard of review applies, then it compromises the reviewing court’s ability to correct error because the distinction between the preponderance of the evidence burden and the clear and convincing evidence burden is lost.32 Those courts instead inquire “whether the record developed before the trial court contains substantial evidence allowing a reasonable factfinder to make the challenged finding with the confidence required by the clear and convincing standard.”33 The California Supreme Court acknowledged a lack of clarity on the subject in its own decisions that had “contributed to what is now a significant split of authority among the Courts of Appeal.”34 In reversing the Court of Appeal, the California Supreme Court dispelled the uncertainty by siding with the second view, opining that courts reviewing judgments based on clear and convincing evidence should bear in mind the “elevated degree of certainty required by this standard,”35 and must make an appropriate adjustment to its analysis when the clear and convincing evidence standard of proof applied before the trial court.36 This was a matter of both logic and policy. It is logical that a finding that requires clear and convincing evidence cannot be viewed on appeal in the same manner as a finding that may be made upon a mere preponderance. Since, where particularly important individual interests or rights are at stake the more rigorous clear and convincing evidence standard of proof is applied, the policy of protecting such rights is furthered by a standard of review that ensures an appropriate degree of appellate scrutiny attaches to findings to which this standard applies.37 Henceforth, the standard applied on review of the sufficiency of the evidence supporting a finding requiring clear and convincing evidence is “whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by the clear and convincing standard of proof.”38
The Implications of the New Standard for Trusts and Estates Practitioners
First, it must be noted that the new standard of review is not limited by any means to conservatorship judgments, such as in Conservatorship of O.B., or to trusts and estates judgments generally. The opinion has already been considered and applied in reviewing a dependency court judgment.39 There is a vast array of general civil cases which the new standard of review will affect, as evidenced by the numerous amici who filed briefs with the Supreme Court, including among others the Association of Southern California Defense Counsel, the Consumer Attorneys of California, and the US Chamber of Commerce.40 The presence of the representatives of the primary tort litigation bars is undoubtedly related to the fact that punitive damage awards require findings of “oppression, fraud or malice” by clear and convincing evidence.41 This underscores that the new standard of review applies to any appeal in which the clear and convincing evidence standard applied in the trial court. Trust and estate attorneys are confronted by the clear and convincing evidence standard of proof on a frequent basis, if not more often than other practice areas. For example, in our aging society the need for conservatorships for the elderly and incapacitated is growing, and the litigants in such cases must, as in Conservatorship of O.B. itself, deal with the clear and convincing evidence standard as a threshold issue in every case.42 Practitioners also will face the clear and convincing evidence43 burden where the presumption of title for real property and bank accounts can be overcome only by clear and convincing evidence;44 claims that a written instrument should be reformed on the basis of fraud, mistake or parole evidence; claims to enforce an oral agreement to make a will;45 overcoming the presumption that a donative transfer to a caregiver was the product of undue influence;46 and numerous other situations. The Probate Code reveals 673 different instances in which findings must be supported by clear and convincing evidence, by statute. And this figure only enlarges when one considers the many instances in the Civil Code, Code of Civil Procedure, Evidence Code, and Welfare and Institutions Code that require clear and convincing evidence.
How reviewing courts will apply the new standard remains to be seen, but it is clear that an appellant starts out with a slightly better chance of success than under the old rule. Indeed, the Supreme Court acknowledged that the new rule results in greater scrutiny of the trial court’s judgments requiring clear and convincing evidence. Appellants should be aware that despite the greater scrutiny, the Supreme Court reiterated the age-old deference to the trial court as being better placed to determine question of facts: “[i]n conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”47 Nevertheless, the new standard reflects a requirement that there be a “high probability” that the required facts supporting the clear and convincing standard were true. By contrast, as noted above, under the prior “regular” substantial evidence standard of review, the testimony of one witness, even if contradicted, could result in the judgment being affirmed. Under facts such as those presented at trial in Conservatorship of O.B. it surely is less likely that the reviewing court would have affirmed the judgment where there was only one live witness in favor of the conservatorship, and three live witnesses, including two experts, in opposition. As one commentator put it, a fact supported by two weak inferences and equivocal testimony may suffice under a preponderance of the evidence standard,48 but not under a clear and convincing evidence standard. The exact contours of what does and does not suffice will be worked out by future published decisions reviewing judgments requiring proof by clear and convincing evidence.
Ciarán O’Sullivan received his law degree from the University of California, Hastings College of the Law in 1998. A native of Cork City, Ireland, he received his undergraduate degree from University College Dublin, in Dublin, Ireland. Before moving to the United States Ciarán worked as a management accountant for an industrial consortium in Dublin. For eight years prior to attending law school Ciarán worked in the legal services and support industry in San Francisco. He lives in San Francisco with his wife and son. Prior to opening his own practice Ciarán honed his skills for 12 years at firms such as Crosby Heafey Roach & May (including after its merger with Reed Smith) and Nossaman LLP. Ciarán strives to bring to his solo practice the same commitment to legal excellence, in all its forms, that he acquired at those institutions. Now, Ciarán’s clients get “big-firm” quality representation at a small firm cost.
Endnotes: 1. Conservatorship of O.B. (2020) 9 Cal.5th 989. 2. Eisenberg et al., Cal. Practice Guide, Civil Appeals and Writs [TRG 2020], ¶ 8:15 at 8-5 (hereafter “Civil Appeals & Writs”). 3. 9 Witkin, Cal. Procedure, (5th ed.). 4. Ibid. 5. Id. 6. Sonic Mfg. Technologies, Inc. v. AAE systems, Inc. (2011) 196 Cal.App.4th 456, 465 (“Failure to acknowledge the appropriate standard of review is a concession of lack of merit.”). 7. Civil Appeals & Writs, ¶ 8:106. 8. Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 105. 9. People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432. 10. Estate of Powell (2000) 83 Cal.App.4th 1434, 1439-1440; Newman v. Wells Fargo Bank, N.A. (1996) 14 Cal.4th 126, 134. 11. Prob. Code, § 1000, subd. (a); see also, Saint Agnes Med. Ctr. v. Pacificare of California (2003) 31 Cal.4th 1187, 1996 (where facts are undisputed, question of waiver is determined de novo); Singh v. Southland Stone, U.S.A. Inc. (2010) 186 Cal.App.4th 338, 352-353 (de novo review of the application of the parol evidence rule to exclude evidence of a collateral oral agreement). 12. Blank v. Kirwan (1985) 39 Cal.3d 311, 331. 13. Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Dept. of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831. 14. Dept. of Parks & Recreation v. State Personnel Bd., supra, 233 Cal.App.3d at 831. 15. Prob. Code, §§ 16440, 16441. 16. Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331. 17. Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632. 18. In re Ana C. (2012) 204 Cal.App.4th 1317, 1329. 19. Conservatorship of B.C. (2016) 6 Cal.App.5th 1028, 1034. 20. In re Michael G. (2012) 203 Cal.App.4th 580, 589. 21. Civil Appeals & Writs, supra, ¶ 8:43. 22. Conservatorship of O.B. (2019) 32 Cal.App.5th 626. 23. Id. at 628-632. 24. Prob. Code, § 1801, subd. (e). 25. Conservatorship of O.B., supra, 32 Cal.App.5th at 633-634. 26. Id. at 634-635. 27. Conservatorship of O.B. (2020) 9 Cal.5th 989, 998. 28. Ibid. 29. Id. at 999. 30. Id. at 998. 31. Id. at 995. 32. Id. at 1004-1005. 33. Id. at 1005 34. Id. at 1004-1005. 35. Id. at 1000-1001. 36. Id. at 1005. 37. Id. at 1005-1006. 38. Id. at 1005. 39. In re V.L. 2020 WL 5200425 (September 1, 2020) at p. 6 (Conservatorship of O.B. signaled that it has broad application.) 40. Conservatorship of O.B., supra, 9 Cal.5th at 994. 41. Civ. Code, § 3294, subd. (a). 42. Prob. Code, § 1801, subd. (e). 43. Prob. Code, §§ 5300 et seq.; Evid. Code, § 662. 44. Conservatorship of O.B., supra, 9 Cal.5th at 999. 45. Prob. Code, § 21700, subd. (a)(4). 46. Prob. Code, § 21380, subd. (b). 47. Conservatorship of O.B., supra, 9 Cal.5th at 1011-1012. 48. R. Olson, E. Xanders, “A ‘clear and convincing’ appellate standard,” Daily Journal, August 4, 2020.