A ‘clear and convincing’ appellate standard

In Conservatorship of O.B., 2020 DJDAR 7797 (July 27, 2020), the California Supreme Court, in a unanimous decision authored by Chief Justice Tani Cantil-Sakauye, resolved over a century of uncertainty over how appellate courts should review findings made under a "clear and convincing" evidentiary standard.

The Clear and Convincing Trial Court Evidentiary Standard

The trial court evidentiary standard dictates the certainty that the factfinder must have before making a factual determination. It reflects "the degree of confidence our society deems necessary in the correctness of factual conclusions for a particular type of adjudication, to allocate the risk of error between the litigants, and to indicate the relative importance attached to the ultimate decision." Id. at 7799 (citation omitted). "Clear and convincing" is a heightened evidentiary standard requiring greater certainty than the normal civil "preponderance of evidence" standard (more likely than not), but something less than the criminal "beyond a reasonable doubt" standard. It requires the factfinder to determine it is "highly probable" that a fact is true. Id. at 7798-99, 7803, 7806; see id. at 7800 n.2 quoting "no substantial doubt," "unhesitating assent" formulation in In re Angelia P., 28 Cal. 3d 908, 919 (1981).

The Appellate Conflict

The issue is what happens to the "clear and convincing" standard on appeal. One line of cases has held that the evidentiary standard disappears on appeal. Under that view, the appellate court should only examine whether substantial evidence supports the factual finding.

A contrasting line of cases has held that the appellate court must take the heightened proof standard into account in reviewing the finding. Under that approach, before the appellate court can affirm a finding made under a clear and convincing evidentiary standard, there must be evidence that a reasonable factfinder -- be it jury or judge -- could find to be clear and convincing. In other words, the record must "contain[] substantial evidence allowing a reasonable factfinder to make the challenged finding with the confidence required by the clear and convincing standard." Conservatorship of O.B., 2020 DJDAR at 7798 (citation omitted).

The Clear and Convincing Standard Has to Be Accounted for on Appeal

The Supreme Court chose the latter approach: "We conclude that appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands." Id. Thus, "when reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true." Ibid.; see also id. at 7806 (same). Conservatorship of O.B. disapproved contrary language in eight prior Supreme Court cases and 20 published Court of Appeal decisions as well as commentary in two Witkin sections.

The appellate court does not weigh the evidence anew to decide for itself whether the record evidence is clear and convincing. Rather, it decides whether construing the evidence and inferences in favor of the finding, a reasonable factfinder could so conclude. As the U.S. Supreme Court explained the standard: "[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (italics added).

When is that going to make a difference? A fact supported by two weak inferences and equivocal testimony may suffice under a preponderance of the evidence standard but not under a clear and convincing standard. Likewise, a single witness' vague testimony might suffice in the face of multiple, disinterested witnesses' testimony under a preponderance of the evidence standard but not under a clear and convincing standard. The exact contours of what does and does not suffice will be worked out on a case-by-case basis as the law develops.

The Specific Context

Conservatorship of O.B. concerned whether to appoint a limited conservatorship for a young woman with autism, a determination requiring clear and convincing evidence. A psychologist opined that the young woman was not a proper candidate for a limited conservatorship and a county public guardian investigator testified that a limited conservatorship was unnecessary. Others testified to their interactions with the young woman and the trial judge observed her at various proceedings. The trial judge granted the conservatorship. The Court of Appeal held that the clear and convincing evidentiary standard of proof was of no moment on appeal. The Supreme Court, adopting the opposite line of authority, reversed and remanded to the Court of Appeal to reevaluate the evidentiary record in light of the clear and convincing standard of proof.

Reflecting the issue's broader significance, the case drew multiple amici, including the Association of Southern California Defense Counsel and the National Chamber of Commerce (favoring the standard that the Supreme Court adopted) and major plaintiff's bar members (arguing for the "disappears on appeal" standard).

The Broader Subject Area Implications

Although decided in one specific context, Conservatorship of O.B. broadly applies to any appeal in which the clear and convincing evidentiary standard governed in the trial court. The opinion specifically discusses the appellate standard of review as applied in a range of cases requiring clear and convincing evidence, including interpretations of deeds and wills, punitive damages in civil cases, harassment, dependency and parental rights, marital separate property rights, oral agreements not to revoke wills, and reformation of insurance policies. The court's analysis logically applies to any other case involving that standard. See, e.g., Anderson, 477 U.S. 242 (New York Times v. Sullivan "clear and convincing" evidentiary burden in public figure/public controversy defamation claims); Looney v. Superior Court, 16 Cal. App. 4th 521, 539 (1993) (reviewing Code. Civ. Pro., Section 425.13 determination whether to allow punitive damages to be sought against healthcare provider); Welf. & Inst. Code, Section 15657 (enhanced remedies for elder abuse).

The 3rd District Court of Appeal already has applied Conservatorship of O.B. by evaluating record evidence against the clear and convincing threshold for a finding that defendant's employee was a managing agent for punitive damages purposes. King v. U.S. Bank National Assn., 2020 DJDAR 7891 (July 28, 2020).

Logically, Conservatorship of O.B.'s same analytical framework -- that the record evidence would have to allow a reasonable factfinder to determine that the evidence meets a heightened proof standard -- should apply equally in criminal cases and to the beyond a reasonable doubt standard.

Implications for Trial Court Practice

Nor is Conservatorship of O.B.'s impact limited to appellate review. Analytically, the same standard should apply when a trial judge determines a motion assessing whether, as a matter of law, the record does not support a claim requiring clear and convincing evidence, such as motions for summary judgment or summary adjudication or for judgment notwithstanding the verdict. The trial court should credit the opposing party's evidence and undisputed facts, and then determine whether a reasonable factfinder could conclude that the evidence meets the clear and convincing proof standard. 

The authors filed an amicus brief in Conservatorship of O.B. on behalf of the Association of Southern California Defense Counsel.