The Standard of Review Incorporates the Burden of Proof.

Conservatorship of O.B., No. S254938 (Cal. Jul. 20, 2020)

Factual findings get appealed for a sufficiency of the evidence under substantial evidence standard of review. That standard asks whether, crediting the inferences in favor of the finding, there was adequate evidence to sustain the finding as a matter of law. It’s basically the same amount of evidence necessary to defeat a summary judgment or jnov motion. The question before the Supreme Court this case is: how is that affected by the burden of proof?

This is a conservatorship case where the clear and convincing evidence burden of proof applies. That burden—more than preponderance but less than beyond a reasonable doubt—asks whether the evidence makes the fact in issue “highly probable.” So, it seems pretty uncontroversial that on an appeal for the sufficiency of the evidence, the reviewing court should ask whether there was enough evidence from which the trier of fact could find that the disputed fact was, indeed, highly probable. Logically, that needs to be somewhat more or better than the evidence required to sustain a finding that a fact is more likely than not. That would equate the standard with the way the burden of proof applies in the SJ or JNOV contexts. See Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 850 (2001).

Unfortunately, some older Cal. Supreme Court cases were not super clear on the issue. And there are some Court of Appeal cases that get it wrong—many relying on some dicey language from Witkin—and hold that the substantial evidence standard does not account for the burden of proof. But the Chief Justice, writing for a unanimous Court, clears that up now.

Court of Appeal reversed.