Legal News and Appellate Tips

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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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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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.

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 […]

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 […]

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. […]