Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process.
Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your evidence.
This means that, to have a shot on appeal, you have to look at your case a whole new way.
A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.
But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).
The attorney-appellant, serving as trustee, took money from the estate to pay fees owed individually by his beneficiary client. When the court (correctly) surcharged him for that, the appellant went back to his client demanding she pay up. She refused, so the appellant sued. But the court denied his fees, reasoning his prior invoices showed the fees had been paid in full.
Reversing, the Court of Appeal reasoned the fee obligation was obviously unpaid. The invoices showing payment barely merited a "come on, man."
The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)
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I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v. Li (D2d4 May 27, 2021) no. B301004 (non-pub.) personally promised to repay the obligation. And not only is the finding reviewed on the very deferential substantial-evidence standard, but there was not even a court reporter at the trial! Game, set, and match, I would have concluded.
Yet, the defendant got the judgment reversed on appeal. And the defendant showed there are limits to the alter ego doctrine.
The Upshot: In the appropriate case, the Court of Appeal may reverse for lack of substantial evidence supporting all the necessary elements of a claim. And a settled statement can be a viable substitute for a reporter's transcript on appeal. But, still, and although, I would not bet on it.
Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal.
A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021) no. D075577, an employment/disability case that resulted in a $1 million compensatory damages and $5 million punitive damages verdict.
This case prompts a reminder that new trial motions can give a result that appeals cannot: Review of the "weight of the evidence," which is fundamentally different from "substantial evidence" review on appeal.
But this case also raises questions about how trial courts are to treat inconsistent verdicts after a partial new trial. The authorities may be split on this issue. Or if not split exactly, then rather unclear.
It takes a gambling sort to go it alone on a new trial motion.
After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy."
But the recent published opinion in Bacall v. Shumway (D2d8 Feb. 18, 2021) No. B302787 illustrates the limits of review of arbitration awards. Appellant raised some decent legal challenges, apparently hoping to get the same result as in Brown. But fell short.
So while it is possible to get meaningful relief on appeal after arbitration, it is still tough going.
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 […]