Legal News and Appellate Tips

A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here, the letter identified the beneficiary and executor, was written on letterhead and recited the testator’s sound mind and good health, along with the testator’s full name, address, and social security number. And the testator emailed the beneficiary about it the next day.

The probate court didn’t buy it, probably because the testator and beneficiary were only romantically involved for a short time and then broke up a short time later. But the Court of Appeal reversed in an opinion that basically asks, “what more could you ask for?” The probate court pointed to the fact that the relationship between the testator (a trans woman) and the beneficiary (a woman) was only six-months old at the time and had fallen apart a few months later. But “it is not for the courts to act in a parens patriae role over competent adults by second-guessing the wisdom of their personal decisions.”

And what happens after a will is executed is not probative of the testator’s intent at the time of execution.

Takeaway: What is noteworthy about this case is that the petitioner had a heavy burden in the probate court, making her burden in the appellate court all-but-impossible. “[W]e can reverse only if we conclude that the evidence below as a matter of law compels a finding by clear and convincing evidence” that the testator intended the letter as a will.

And yet she succeeded. The two takeaways from this published opinion reversing on a factual finding on the issue of testamentary intent are (1) the wisdom of the bequest is irrelevant; and (2) acts subsequent to execution are irrelevant. If a probate court relies solely on irrelevant evidence like this, and the balance of the evidence supports a testamentary intent, then maybe the court will reverse.

But it’s still a long shot.

After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment.

But the trial court at the hearing considered the parties’ declarations as well as testimony, and concluded Anatoly’s explanation was more reasonable.

That’s “absurd”! argued Darya on appeal. But the court in Dumov v. Khankin (D6 Apr. 14, 2023 no. H050180) 2023 WL 2942989 (nonpub. opn.) noted that challenging a factual finding “requires that she demonstrate not merely that Dumov's evidence could be disbelieved but that her own evidence was “ ‘of such character and weight’ ” that she was entitled to relief as a matter of law.” That means that, to prevail on appeal, the appellant “would have to establish that no reasonable trier of fact could have failed to credit her evidence over” the respondent’s. This is almost always impossible.

To seal the deal, Darya did not provide an oral record of the hearing at which the trial court heard the parties’ testimony. “Where no [record of the oral proceedings] has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.”

Darya noted that she was not aware that there was not a court reporter during the hearing. But that is of no moment, because when she later did become aware, she could and should have moved for a settled statement.

Comment

The appellant in this case misapprehended the principles of appellate review so badly, in fact, that it could easily have been argued that the appeal was objectively frivolous so as to support a motion for appellate sanctions.

Before appealing, ask yourself if you are challenging a credibility determination. If you are, reconsider your decision.

And if in addition you had the burden of proof on the credibility determination, a trip to Vegas may be a wiser investment (and more enjoyable) than pursuing the appeal.

And if on top of all that you also do not have a record of the oral proceedings, get ready to get sanctioned.

You know about “de novo” and “abuse of discretion” and “substantial evidence.” But most attorneys have never heard of the “finding compelled as a matter of law” standard of appellate review. That is because it rarely comes up. The “compelled finding” standard only comes up when the party with the burden of proof (usually plaintiff) loses at trial, and argues on appeal that its case was so truly overwhelming that only an unreasonable fact-finder would have been left unpersuaded.

With that in mind, there are two interesting things about Missinato v. Missinato (D2d7 Apr. 15, 2022 no. B305989) 2022 WL 1124871 (nonpub. opn.). First, it is surprising because the court found the defendant’s statute-of-limitations defense so overwhelming that only an unreasonable person would be unpersuaded. Second, one of the panel was unpersuaded.

That seems awkward, no?

There are several things about this opinion I find really shocking. #AppellateLinkedIn, take a look and let me know your thoughts.

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell.

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like a summary-judgment standard, in which the appellate court must be satisfied the plaintiff's evidence is so compelling that the plaintiff is entitled to a finding as a matter of law. This is a very difficult burden to overcome, and so it is rarely attempted, and even more rarely met.

But the plaintiff met the high finding-compelled-as-a-matter-of-law standard in King v. May-Wesely (D5 Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).
This almost never happens.

If you are the successful defendant responding to the plaintiff's appeal, keep the finding-compelled-as-a-matter-of-law standard in mind. Unsuccessful plaintiffs sometimes think the substantial-evidence standard of review applies. But as the authorities indicate, this is not only incorrect, it is misleading. It is not enough for the plaintiff to point to the defendant's evidence as insubstantial: the plaintiff must show it met its burden by uncontradicted and unimpeached evidence.

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