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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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July 28, 2020

The Supreme Court of California issued an opinion yesterday that will have a broad impact on appellate review of trial court factual findings, especially in cases involving punitive damages.

While most facts in civil cases must be proven by a preponderance of the evidence at trial, certain facts must be proven by the higher clear and convincing evidence standard. This standard applies to a wide variety of issues, including the factual prerequisites for seeking an award of punitive damages (i.e., proof that the defendant acted with malice, oppression, or fraud).

The clear and convincing standard also applies to conservatorship issues. That was the context in which the issue reached the Supreme Court in Conservatorship of O.B. The trial court found that a conservatorship was warranted for a woman with autism. She appealed, arguing there was insufficient evidence to meet the clear and convincing evidence standard. The Court of Appeal affirmed, ignoring the clear and convincing evidence standard and reasoning that the higher standard applies only at trial, not on appeal.

The Supreme Court reversed, rejecting the Court of Appeal’s reasoning and disapproving a line of cases—including some of its own prior opinions—suggesting that the clear and convincing evidence standard “disappears” on appeal. The Court found that “logic, sound policy, and precedent all point toward the same conclusion: When reviewing a finding made pursuant to the clear and convincing standard of proof, an appellate court must attune its review for substantial evidence to the heightened degree of certainty required by this standard.” The Court further clarified the standard appellate courts must use: “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.”

Horvitz & Levy submitted an amicus brief in the O.B. case, on behalf of the United States Chamber of Commerce, advocating the position adopted by the Court.