Daily Blast - July 27, 2020 - Lewis Brisbois Bisgaard & Smith LLP

Earlier this week, the California Supreme Court issued an opinion in Conservatorship of O.B. (July 27, 2020, S254938) ___ Cal.5th ___, analyzing “how an appellate court is to review the sufficiency of the evidence associated with a finding made by the trier of fact pursuant to the clear and convincing standard.” (Slip opn., p. 1.) The court held that “[w]hen 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.” (Id. at p. 6.)

The court explained that the clear and convincing evidence standard of proof does not disappear on appeal. Rather, “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 [the clear and convincing evidence] standard demands. In a matter such as the one before us, 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. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due 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.” (Slip opn., p. 2.) In other words, “when a heightened standard of proof applied before the trial court, an appropriate adjustment must be made to appellate review for sufficiency of the evidence.” (Id. at p. 26.)

This is a good case to consult if you have any questions about what the clear and convincing standard means both in general and how it should be applied on appeal as the opinion explains the clear and convincing standard of proof and surveys its various applications. A copy of the opinion is attached.