Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard.
In Conservatorship of O.B. (2020) 9 Cal.5th 989, the Supreme Court held that “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.” In other words, the high bar of clear and convincing evidence continues to be the standard on appeal.
The clear and convincing evidence standard applies to quite a few categories of California trust and estate disputes. Conservatorship of O.B. seems to invite closer appellate review of trial court decisions and thus could lead to more appeals and perhaps even greater success on appeal.
What was the case about?
O.B. was a young woman with an autism spectrum disorder. After she turned 18, her mother and sister petitioned for a limited conservatorship over her person, claiming that O.B. was “unable to properly provide for . . . her personal needs for physical health, food, clothing, or shelter.”
Under Probate Code section 1801(d), a “limited conservator of the person . . . may be appointed for a developmentally disabled adult. A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations.”
Section 1801 (e) specifies that “clear and convincing evidence” must be presented to warrant a limited conservatorship.
A judge in Santa Barbara County Superior Court appointed a public defender to represent O.B. and she opposed the proposed conservatorship. The judge heard evidence over several court sessions spanning a nine-month period, eventually granting the conservatorship petition.
The Court of Appeal affirmed that ruling, stating that the “clear and convincing” standard “is for the edification and guidance of the trial court and not a standard for appellate review.”
What’s clear and convincing evidence and when must it be shown?
The Supreme Court explained that the “default standard of proof” in civil cases is “preponderance of the evidence” that simply requires a trier of fact “to believe that the existence of a fact is more probable than its nonexistence.”
In contrast, the “standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt.” This “intermediate standard” requires the proponent to convince a jury or judge that it is “highly probable” that the asserted facts are true, not merely that the facts are probably true.
The clear and convincing standard, as the court observed, applies to determinations “where particularly important individual interests or rights are at stake.”
In California trust and estate litigation, the clear and convincing evidence standard applies in several key contexts:
- When a petitioner seeks to establish a conservatorship of the person and/or estate of another, including the “limited conservatorship” at issue in Conservatorship of O.B. as well as other probate conservatorships. See Probate Code section 1801.
- When a person seeks to enforce an oral agreement to make a will, devise or other instrument against a decedent’s estate. See Probate Code section 21700.
- When the proponent of an instrument that makes a donative transfer under questionable circumstances seeks to overcome the statutory presumption of fraud or undue influence. See Probate Code section 21380.
- Contests of wills, trusts and other instruments, where the contestant generally bears the burden of proving undue influence unless the contestant can shift the burden to the proponent of the document to establish the absence of undue influence.
- Reformation of a will or trust to fix a mistake in the expression of the testator/settlor’s intent.
- When a party seeks to overcome the presumption that a surviving holder of a joint account is entitled to the assets in the account. See Probate Code section 5302 and our recent post.
- When a party disputes ownership of titled assets such as real estate. See Evidence Code section 662.
- When a decedent’s personal representative or successor in interest seeks damages for pain and suffering sustained by a decedent who was the victim of financial elder abuse. See Welfare and Institutions Code section 15657.5.
What standard should an appellate court apply?
The Supreme Court found it necessary to clarify a “split of opinion” in California over how an appellate court should address a claim of insufficient evidence when proof by clear and convincing evidence was required.
In summary, the court held that “an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. 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. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”
Since the Court of Appeal had not applied the correct standard, the Supreme Court sent the case back to that court for further review.
What’s the takeaway?
Given that the clear and convincing evidence standard of proof does not “disappear” on appeal, we should anticipate that appellate courts will look more closely at trial court decisions when that standard is applicable. Appeals claiming insufficiency of the evidence remain hard to win given how the appellate court must review the record in a way that is favorable to the trial court winner. However, with the clarification now provided in Conservatorship of O.B., when a party proves a matter by clear and convincing evidence, the losing side may be more inclined to take up the matter on appeal.
Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.