Basic Appellate Principles: “De Novo” Standard of Review

Basic Appellate Principles:

 

De Novo” Standard of Review

 

“Matters presenting pure questions of law, not involving the resolution of disputed facts, are subject to the reviewing court’s independent or “de novo” review.” (Diamond Benefits Life Ins. Co. v. Troll (1998) 66 Cal.App4th 1, 5.) Examples of situations involving independent review are numerous:

 

  • Constitutional issues;
  • Interpretation of statutes and regulations;
  • Legislative validity;
  • Interpretation of writings where no conflicting extrinsic evidence presented;
  • Determining duty of care;
  • Application of the law to undisputed facts;
  • Rulings on demurrers or motions for judgment on the pleadings;
  • Rulings on motions for summary judgment or summary adjudication;
  • Rulings on nonsuit, judgments notwithstanding the verdict or for directed verdict;
  • Erroneous or refused jury instructions.

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Basic Appellate Principles: “Substantial Evidence” Standard of Review

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.) Read more

Basic Appellate Principles: “Abuse of Discretion” Standard of Review

Basic Appellate Principles:

 

“Abuse of Discretion” Standard of Review

 

Trial courts are granted discretion to rule in a number of situations. For example: the granting or denying of a preliminary injunction; whether to stay or deny contractual arbitration; whether to disqualify an attorney because of a conflict of interest; attorney fee awards; discovery rulings; certain evidentiary rulings; continuances of trial or other hearings; and support orders in the family law context, among other things. Read more

Basic Appellate Principles: Standard of Review for Mixed Questions of Law and Fact

Basic Appellate Principles:

 

Standard of Review for Mixed Questions of Law and Fact

 

“Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)

 

“Whenever a question of mixed law and fact exists, three steps are involved: (1) the establishment of basic, primary or historical facts; (2) the selection of the applicable law; and (3) the application of the law to the facts. [Citation.] All three trial court determinations are subject to appellate review: (1) questions of fact are reviewed by giving deference to the trial court’s decision; (2) questions of law are reviewed under a non-deferential standard, affording plenary review; and (3) application of the law to facts is reviewed under a clearly erroneous standard if the inquiry is essentially factual.” (Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147, 156-157.)

Basic Appellate Principles: Presumption of Correctness and Burden of Appellant

Basic Appellate Principles:

 

Presumption of Correctness and Burden of Appellant

 

“A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must affirmatively be shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics in the original.) Read more

Winning Your Appeal at the Trial Court Level: Jury Instructions

Winning Your Appeal at the Trial Court Level:

 

Jury Instructions

 

A particular jury instruction is waived if there is not a timely request for it. Also, when dealing with jury instructions, make sure the record is clear as to who requested each instruction. It is important that the record reflects whether any instructions were withdrawn, and who withdrew it, so that you can avoid any adverse presumption from the absence of a particular instruction. (Connor v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 746, 758; Gong v. Firemen’s Insurance Co. (1962) 202 Cal.App.2d 686, 695.) Read more

Winning Your Appeal at the Trial Court Level: Motion for New Trial

Winning Your Appeal at the Trial Court Level:

 

Post-Trial

Motion for New Trial

 

You must file a motion for new trial in order to preserve certain issues for appeal. For instance, you can only make the argument on appeal that the damage award was excessive or inadequate by first filing a motion for new trial. If you do not, you waive the issue on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919.) Read more

Winning Your Appeal at the Trial Court Level: Law & Motion

Winning Your Appeal at the Trial Court Level:

 

Law & Motion

 

All motions must be supported by evidence. Statements of facts in a points and authorities will be ignored by the court of appeal unless supported by declaration. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573; Owens v. Intertec Design, Inc. (1995) 38 Cal.App.4th 72.) With respect to motions for summary judgment, the separate statement must refer to admissible evidence. (Thrifty Oil Co. v. Superior Court (2001) 91 Cal.App.4th 1070, 1075, fn. 4.)

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Winning Your Appeal at the Trial Court Level: “Statement of Decision”

Winning Your Appeal at the Trial Court Level:

 

Post-Trial

“Statement of Decision”

 

Request a statement of decision. “The statement of decision provides a record of the court’s reasoning on particular disputed issues which we may review in determining whether its decision is supported by the evidence and the law.” (Gavaldon v. Daimler Chrysler Corp. (2002) 95 Cal.App.4th 544, 553.) Absent a statement of decision, the appellate court presumes that all facts were found against appellant. (Marriage of Arceneaux (1991) 51 C3d 1030, 1035; Cal. Civ. Proc. §634.) Read more

Winning Your Appeal at the Trial Court Level: Make a Record

Winning Your Appeal at the Trial Court Level:

 

Make a Record

 

“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

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