Basic Appellate Principles:
“Substantial Evidence” Standard of Review
Your success on appeal is largely determined by the standard of review the court of appeal is going to employ to your case. There are several different standards of review, depending on the type of order or judgment for which you seek to appeal. One such standard of review is known as the “substantial evidence” standard of review. The court of appeal applies this standard where your appeal is from a judge or jury’s finding on any factual issue at trial or otherwise. (Windograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465.)
Should you appeal such a factual finding, the court of appeal will start with the presumption that the judge/jury’s finding was correct. It is therefore up to you to present all the evidence to the court of appeal, and based upon all of the evidence, illustrate to the court how the judge/jury’s finding lacked “substantial evidence.” This is a tall task.
“Substantial evidence” does not mean any evidence; it merely means evidence that is “reasonable…credible and of solid value…” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, quoting Estate of Tweed (1952) 112 Cal.App.2d 638, 644.) Therefore, it is not the quantity of the evidence, but the quality of the evidence, that matters. One credible witness is sufficient, even if his or her testimony is contradicted by the testimony of others. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) It is only where that witness’s testimony lacks credibility where there is room to argue a lack of “substantial evidence.” (Otrzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 171.) If there are conflicts in the evidence, the court of appeal will resolve those conflicts and inferences from the evidence in favor of the judge/jury’s decisions. (Kuhn, supra, 22 Cal.App.4th at 1632-1633.)
In this context, the concept of burden of proof, i.e., “clear and convincing evidence” or “preponderance of evidence,” is irrelevant. These concepts involve weighing the evidence to determine whether a fact or issue is established. The court of appeal does not reweigh the evidence, it only examines whether there is evidence to support the trial court’s decision. Although there may be substantial evidence or even more evidence to support the opposite decision by the trial court, the court of appeal does not look at the appeal that way. (Crail v. Blakely (1973) 8 Cal.3d 744, 750; Rubin v. Los Angeles Federal Savings & Loan Assn. (1984) 169 Cal.App.3d 292, 298. The court of appeal is only concerned with whether or not there was reasonable, solid evidence to support the judge/jury’s decision.
The court of appeal employs this standard because the trial court (judge/jury) is in a better position to evaluate the credibility of the evidence, i.e., the demeanor of the witnesses, their tone of voice, eye contact, and all of the non-verbal communication they engage in during the course of their testimony. (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243.)
The “substantial evidence” standard is commonly acknowledged as one of the hardest standards of review to overcome. The standard, itself, significantly impacts the manner in which an appellant must state the facts in his or her appellate briefs. (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 105; Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
On an appeal challenging the substantiality of the evidence, an appellant’s opening brief must set forth all the material evidence on point; the brief cannot merely state facts favorable to the appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34; Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153.)
Appellant’s burden is to provide a fair summary of the evidence. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739.) When an appellant’s opening brief states only the favorable facts, ignoring evidence favorable to the respondent, the appellate court may treat the substantial evidence issues as waived and presume the record contains evidence to sustain every finding of fact made by the trial court. (Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 571-572; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410 [the appellant cannot shift the burden of presenting all material evidence to the respondent, nor is the appellate court required to undertake an independent examination of the record when appellant “has shirked his responsibility in this respect”].)