Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Standards of Review

Despite a lack of witnesses, letter held to be a will as a matter of law

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.

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When a case turns on credibility, and there is not an oral record, do not even think about appealing

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.

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There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915) supports that consensus.

But the court still reversed. There are limits to what qualifies as evidence that can shift the burden of proof in the summary judgment context to the nonmoving party.

The important thing to take away from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence. As the court put it:

“There is no special category of “corporate representative” witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an “independent review,” whatever the trial court meant by that phrase.”

Comment: The opinion is not clear how the trial court “abused its discretion,” as opposed to merely commit legal error, **in overruling the hearsay and foundation objections to Avon’s evidence—other than that the evidence was, in fact, hearsay and devoid of foundation. The upshot is that the distinction between de novo and abuse of discretion when it comes to evidentiary rulings may come down to more of a mood or nuance than a legally measurable difference.

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New Cases on MSJ Evidence Rulings and Elder Abuse Attachment Orders

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.

We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.

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In a Rare Illustration of the Finding-Compelled-as-a-Matter-of-Law Standard of Review, Appellate Court Reverses a Defense Judgment

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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Ruling Excluding Expert Testimony on MSJ Reversed on Appeal

There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might have avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo standard of review, rather than the deferential abuse of discretion standard.

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Punitive Damages Are Reviewed De Novo; and Effective Use of Dicta

The recent case of Rubio v. CIA Wheel Group (D2d8 Apr. 15, 2021) no. B300021, reminds that awards of punitive damages are reviewed independently by the appellate courts. Rubio also provides a nice illustration how dicta – observations made by prior courts that are not part of their holdings – may be used effectively.
Rubio involved an employee wrongfully terminated because she had cancer. During the trial, employer lied about having knowledge of employee's cancer. (The judge asked: why else did he think employee needed medical leave "for three months? A cold?" Yikes.)

Held: A trial court may properly consider the noneconomic damages in the baseline for a punitive damages award. Combining economic and noneconomic damages here to make the range of harm $115,000 to $165,000, the $500,000 award of punitive damages reflected a multipler of 3.5, which the court held to be permissible.

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Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only […]

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Trial Court Abused Discretion by Awarding Contractual Fees to Defendant Who Lost on the Only Contract Claim

In this commercial lease dispute, the trial court abused its discretion in not one, not two, but three different ways when it awarded contractual fees to the losing defendant. In Waterwood […]

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Failing to Exercise Discretion Is an Abuse of Discretion

Many orders present an uphill climb because the appellate courts review them under the very deferential abuse-of-discretion standard, which means the order is likely within the trial court's wide latitude. […]

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