More presumptions that favor the appellant

The presumption in favor of the appellant is applied in nonsuits and directed verdicts, although the substantial evidence standard is applicable in reviewing the appeal. Thus, the court will assume plaintiff's evidence as true, including reasonable inferences, and determine whether the plaintiff has stated a cause of action. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799; In re Fossa’s Estate (1963) 210 Cal.App.2d 464, 466.)  If a motion in limine is considered tantamount to a nonsuit, the applicable standard of review will be the same.  (Fergus v. Songer (2007) 150 Cal. App.4th 552, 569-570.)

Appellants in situations involving erroneous or refused jury instructions also enjoy presumptions in their favor.  In such cases, the appellate court views the evidence in the light most favorable to the claim of instructional error, assuming the jury might have believed the evidence upon which the instruction was predicated and the jury might have rendered a verdict in appellant’s favor.  (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 655; Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.)

While reviews of anti-SLAPP motions are done on an independent standard, the trial court will presume and accept as true appellant’s evidence and considers the respondent’s evidence only to determine if it has defeated the appellant’s evidence as a matter of law.  “We review the trial court’s order de novo . . . We will not weigh the evidence; rather, we accept as true evidence favorable to the plaintiff, and evaluate evidence favorable to the defendant to determine whether it defeats the plaintiff’s claim as a matter of law.”  (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1262.)

An appeal may involve one or more standards of review, and an issue may also involve a mixture of the standards.  Knowing the standard of review is important to the trial attorney so that if an error occurs, the trial attorney understands how to protect the record and present the appellate court with all of the information it needs to conduct a meaningful review. 

Presumptions that favor the appellant

There are times when the presumption in favor of the judgment  switches to a presumption that favors the appellant.  The appellate court is then required to presume the truth of allegations or evidence in a light favorable to the appellant.

This presumption arises most frequently in appeals from a judgment of dismissal after a demurrer is sustained without leave to amend or after granting a motion for judgment on the pleadings.  In reviewing the case, the appellate court assumes the truth of all facts properly pleaded by the plaintiff.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1347.)  “‘We independently review the ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action. . . We construe the pleading in a reasonable manner and read the allegations in context.’”  (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 82; citations omitted.) 

It also frequently arises in appeals from a dismissal after an order for summary judgment has been granted.  In reviewing the appeal, the appellate court will strictly construe the moving papers and liberally construe the opposing papers.  It will also view the moving papers in a light most favorable to the losing appellant.  Finally, all doubts about granting the motion are resolved in favor of denial.  “'We are not bound by the trial court’s stated reasons or rationales . . . ‘Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.'”  (Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 19.)

Another cautionary tale for trial lawyers

At a recent trial in Los Angeles, a former client and attorney, Gerald Klein of Klein & Wilson, won a major victory in a legal malpractice that pitted his client, ReadyLink Healthcare, Inc., against its former attorneys, Lewis Brisbois Bisgaard & Smith.  ReadyLink, a Nevada-based nursing registry,  claimed Lewis Brisbois committed malpractice and overbilled - almost $5 million! - in several trade secret actions that it lost against two former employees.  The complaint also alleged the firm's attorneys were disorganized and unprepared.    After two months of trial, the jury awarded ReadyLink $6,007,567.83.

I talked with Gerald Klein about the case.  He believes the practice of overbilling is widespread.  An attorney may overbill, but when the client pays the bill without question or objection, the attorney feels free to continue the practice. Klein explained that even at the trial all experts concluded that it is impossible to look at a single bill and establish overbilling; they must look at the bills as a whole with the use of a spreadsheet.

We talked about cases where the attorney's fees far exceeds the amount in dispute.  Klein asks, "How do you justify that to a client?  There may be some cases were there is a reason to defend the action to the bitter end.  But the client has to go in with eyes open with the understanding that the costs of litigation may be more than the actual dispute."

What did he think about the (possible) death of the billable hour? Klein notes, "Law is the one business that I know of where the less efficient you are, the more money you make.  At least a flat fee encourages efficiency so that you can make a profit.  And the clients know what they will pay at the beginning of the case."

Klein listed several recommendations for lawyers in reviewing their billing policies:

1.  Include "no charge" items rather than overbilling and giving a discount.

2.  Do away at much as possible with entries for "revising" documents.

3.  Don't be the billing attorney if you are not actively involved in the case.

4.  Report extensively to the client and return phone calls.

Klein concludes, "Save your surprises for birthdays and anniversaries.  Clients don't like surprises on their bills."

The small world of appellate lawyers

In a recent article in the Daily Journal, the writer reported on the appellate firm of Greines, Martin, Stein & Richland.  She noted that the Greines firm, which frequently competes with appellate firm Horvitz & Levy, has 25 lawyers who, according to Horvitz lawyers, are "friendly competitors and respectful adversaries."  I agree.  That's one of the nice things about practicing appellate law.  Maybe it's because we come across each other so frequently that we try to maintain a friendly civility toward each other.  It is very much a polite society.  Although I don't usually compete with either firm for business, I often find myself facing one or both on the other side.

The author notes that "one thing most appellate specialists seem to share is an academic love of law and language."  So true!  That's not to say that trial attorneys can't enjoy this area of the law, but I find trial attorneys are usually stronger in oral presentation skills rather than in writing and research. Another difference is that appellate attorneys enjoy working with books while trial attorneys seem to enjoy being among people.

The author notes that "Along with growth in this specialty practice has come a move toward bringing appellate lawyers into a case earlier and earlier, even while it is still being conceptualized."  Now we're making progress!  I can think of many times that such a strategy would have been invaluable in protecting the appeal.  For instance, I have observed how much money will be spent on winning or opposing a motion for summary judgment but the documents are not shared with an appellate attorney for review in the early stages of the motion.  I think it is a good move to obtain such a review to make sure the trial attorney has presented the important facts and prepared a solid separate statement.  Having an appellate attorney review the motion can be valuable in identifying triable issues, preparing objections, and responding to the separate statement.

The article omitted any mention of one of the founding members, Martin Stein, who has been my opponent on medical malpractice appeals.  Always a gentleman and a worthy opponent.  And a special recognition of Robin Meadows, who can often be found on the seminar circuit, especially talking up the virtues of e-briefs.

Now, if only I could figure out which attorney plays the Australian didgeridoos (an aboriginal wind instrument).

Substantial evidence: get the reporter's transcript!

If you intend to rely on this standard of review, you must provide a reporter’s transcript of the proceedings.  If you don’t, you will not be able to challenge the sufficiency of the evidence, because you won’t be able to present the entire record to the court.  As a consequence, the court will conclusively presume the evidence supports the judgment.  (In re Estate of Fain (1999) 75 Cal. App.4th 973, 992.)

In In re Estate of Fain, supra, the court stated:

“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.  To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error     . . . The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.”

(Id. at p. 992; italics in original; citation omitted.)

          It makes sense that the reporter’s transcript must be provided, especially when the standard requires a consideration of the entire record.  (In re Estate of Young (2008) 160 Cal.App.4th 62, 76.)  Quite often, the losing party will be able to point to favorable evidence – often ignoring the evidence supporting the winning party.  Taking this approach can result in alienating the court, particularly when the winning party can present a whole laundry list of evidence that was favorable to him or her.  This approach can even result in a waiver of the point on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

           As a point of caution, appellants often complain that the evidence in favor of the respondent cannot be substantial because the other side was lying and was simply not credible.  That is not enough because the trier of fact can believe one side and not the other.  But if the evidence is not credible because the testimony was physically impossible or obviously false, then such a challenge might be successful.  What is important here is to provide the facts necessary to show on the record, and not for the first time on appeal, that the purported evidence is either physically impossible or false.