CARDOZO’S CANAL, AND THE COW
THAT JUMPED OVER THE MOON ©
By Joseph G. Baxter, Civil and Criminal Appellate Specialist
Judges and attorneys often have a difficult time getting a grip on the “abuse of discretion” standard of appellate review, the deferential standard applied when a higher court reviews a trial court’s exercise of discretion. The standard itself is a child of linguistic confusion. Reversal requires a showing of both “a clear case of abuse” and a “miscarriage of justice.” Blank v. Kirwan (1985) 39 Cal.3d 311, 331. A judge, however, who actually “abused” his position would warrant Judicial Council flogging, and not just reversal.
To make matters worse, respondents, and even the courts, are prone to cite cases which hold that a trial court has abused its discretion when its actions “exceeded the bounds of reason.” E.g., Shamblin v. Brattain (1988) 44 Cal.3d 474, 478. By this analysis, appellants must prove that the trial judge is not just an abuser, but the cow who jumped over the moon.
Another test is whether the lower court’s action “falls within the permissible range of options set by the legal criteria.” Dorman v. DWLC Corp. (1955) 35 Cal.App.4th 1808, 1815. This test, however, is “so amorphous as to mean everything and nothing at the same time.” Hurtado v. State Wide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1022.
Benjamin Cardozo, however, provides us with a helpful metaphor. In the aptly named Panama Refining v. Ryan case, the dissenting Cardozo declared that a trier’s discretion must not be “unconfined and vagrant,” but must be “canalized within banks to keep it from overflowing.” 293 U.S. 388, 440 (1935).
Trying to prove an abuse of discretion is “more than a daunting task” (Estate of Gilkson (1988) 65 Cal.App.4th 1443, 1448), especially since a trial court’s exercise of discretion warrants deferential review by the appellate court. Experienced counsel therefore look for exceptions which create pure legal issues warranting de novo (i.e., independent and non-deferential) review.
To determine whether a case falls within an exception, or whether the issue constitutes a pure legal issue warranting de novo review, ask yourself the following seventeen questions:
1. Do the legal criteria – the banks of the canal – satisfy due process and other constitutional considerations?
By way of example, if the criteria are too vague, they allow “unconfined and vagrant” exercises of discretion, Cardozo’s concern in Panama Refining.
2. Did the trial court apply the correct legal criteria and analysis?
The deferential “abuse of discretion” standard of review does not apply when a trial court fails to apply the correct legal criteria, or when its decision is based upon erroneous legal assumptions. Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1165-66; Washington Mutual Bank, FA v. Superior Court (Briseno) (2001) 24 Cal.4th 906, 914; Barella v. Exchange Bank (2000) 84 Cal.App.4th 793,797; People Ex Rel Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144.
3. Are the relevant factual circumstances actually disputed?
Where there are no disputed factual issues, the appellate court conducts independent review. People v. Ex Rel Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144; Cho v. Superior Court (1995) 39 Cal.App.4th 113, 119; Dolan-King v. Rancho Santa Fee Ass’n (2000) 81 Cal.App.4th 965, 974; Exxcess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 704; Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 797; Californians for Population Stabilization v. Hewlett- Packard Co. (1997) 58 Cal.App.4th 273, 294; Snyder v. Marcus & Millichap (1996) 46 Cal.App.4th 1099, 1102; Hambrecht & Quist Venture Partners v. American Medical Internet, Inc. (1995) 38 Cal.App.4th 1532, 1539, n. 4; Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1026 (facts were “largely undisputed”); Eisenberg, Horvitz & Weiner, California Practice Guide: Civil Appeals and Writs § 8:94.1a.
4. Is the relevant evidence essentially documentary?
When the evidence is essentially documentary, the appellate court conducts independent review. Dolan-King v. Rancho Santa Fee Ass’n., supra., 81 Cal.App.4th at 974; City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 64, 71; Exxcess Electronix v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 704.
5. Is the relevant evidence presented by declaration?
There are two lines of authority.
Griffith v. San Diego College for Women (1955) 45 Cal.2d 501, 508 holds that when “an order [is] made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.” In Rappleyea v. Campbell (1984) 8 Cal.4th 975, however, the court clearly ignored the dissent’s reliance on this rule.
A number of published Court of Appeal decisions cite or follow the Griffith rule. See, e.g., Betz v. Pankow (1993) 16 Cal.App.4th 919, 923; Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1171, n. 1; Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653; Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623 (Trial court decision that attorney’s sworn declaration of fault was not believable will be upheld so long as supported by substantial evidence; and in that event, the trial court’s ruling on a § 473(b) motion will be tested under the ordinary abuse of discretion standard.)
A number of decisions, however, suggest that written declarations may be reviewed de novo. Harustak v. Wilkins (2000) 84 Cal.App.4th 208; Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 89; Mayhew v. Benninghoff III (1997) 53 Cal.App.4th 1365, 1369; United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 232.
6. Did the trial court incorrectly believe it lacked discretion?
If the record demonstrates that the trial court erroneously believed it had no discretion, the appellate court will reverse and remand for the required exercise of discretion. Fletcher v. Superior Court (Oakland Police Department) (2002) 100 Cal.App.4th 386, 392; People v. Melony (2003) 30 Cal.4th 1145, 1165; People v. Hard (2003) 112 Cal.App.4th 272, 283-84; People v. Gillespie (1997) 60 Cal.App.4th 429, 434, People v. Surplice (1962) 203 Cal.App.2d 784, 791-92.
7. Did the trial court follow improper procedures in reaching its decision?
The deferential standard of review also does not apply when the trial court fails to follow proper procedures in reaching its decision. See, e.g., People v. Green (1980) 27 Cal.3d 1, 24; Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1137 (requirement that trial court make affirmative record that it exercised its discretion and weighed probative value against prejudicial effect under Evidence Code § 352); Oakland Raiders v. National Football League (2005) Cal.App. Lexis 272 (2/23/05) (independent review of new trial order containing an inadequate specification of reasons); Larwin-Southern Cal., Inc. v. JGB Inv. Co. (1979) 101 Cal.App.3d 626.
8. Were all the relevant circumstances evaluated?
This is a powerful, yet often overlooked, exception. The deferential “abuse of discretion” standard of review does not apply when the record or the findings of the trial court suggest a “lack of consideration of the essential circumstances to be evaluated” in exercising discretion. Marriage of Lopez (1974) 38 Cal.App.3d 93, 117 (trial court’s failure to consider all the applicable circumstances in determining spousal support). “To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.” In re Cortez (1971) 6 Cal.3d 78, 85-86 (quoting People v. Surplice (1962) 203 Cal.App.2d 784, 791) (Resentencing after remand requires a new probation report which includes information regarding the defendant’s behavior since his original sentencing.) United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 233 (In deciding whether to dismiss an action for failure to prosecute “the trial court must consider all factors relevant to the motion regardless of the grounds set forth in the supporting and opposing declarations.”) Cf. Estate of Larson (1980) 106 Cal.App.3d 560, 567 (Substantial evidence review does not apply where the trial court has not “performed its function of weighing the evidence” or has not weighed the various relevant factors.)
9. Did the trial court give significant weight to an irrelevant or improper factor, or false information?
Consider what the federal courts have said. Reversal is required “when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.” Williams v. Carter, 10 F.3d 563, 566 (8 Cir. 1993) quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8 Cir. 1984). See, e.g., Espinosa v. Florida (1992) 505 U.S. 1079, 1082-83.
10. Did the trial court rely upon a consideration of little value?
Certain federal sentencing decisions extend the ninth principle even further. In United v. Weston (9 Cir. 1971) 448 F.2d 626 the sentence below was based upon specific but unsubstantiated Federal Bureau of Narcotics allegations in a sentencing report that the defendant was a large scale heroin dealer. This was supposedly based upon an investigation and information from an unidentified informant. Id. at 633. The Ninth Circuit reversed, holding that “a sentence cannot be predicated on information of so little value . . . .” Id. at 634. Accord, United States v. Baylin (3 Cir 1982) 696 F.2d 1030, 1040. Cf. United States v. Williams (1 Cir. 1974) 499 F.2d 52, 55.
11. Does the decision of the trial court actually reach the relevant issue?
Thus, in Eggers v. Eggers (2005) 131 Cal.App.4th 695, the issue below was the father’s income for the purpose of calculating child support. Certain decisions allow the trial court to exercise its discretion and impute income when an unemployed parent has the ability and opportunity to earn income but does not earn income. Eggers, however, presented a new situation: a father who was unemployed as a result of on-the-job misconduct. Holding the father responsible for losing his job, the trial court exercised its Family Code § 4058 discretion and imputed income to the father based on his earnings from his former employment. The Court of Appeal reversed, holding that imputation of income was not automatic when a parent loses their job due to misconduct. If the father could show that he did not have the ability or opportunity to work, an issue not actually reached below, he did not have to pay child support.
12. Does the decision contradict one of the its own findings?
In Re K.D. (2004) 124 Cal.App.4th 1013 demonstrates this principle. The Court of Appeal held that an order terminating dependency was inconsistent with the trial court’s findings that it was in the child’s best interest to maintain parental bonds, and with the court’s order that visits occur at least twice each year. Jurisdiction was needed to satisfy these paramount interests.
13. Did the trial court apply the correct burden of proof?
Thus, in In re Tamika C. (2005) 131 Cal.App.4th 1153, the court reversed an order terminating dependency jurisdiction, holding that the trial court applied the wrong burden of proof.
14. Is the higher court in as good a position to decide the issue as the trial court?
If an issue is fact intensive and the trial judge has a “first person vantage,” the determination of the trial court warrants deference. People v. Kennedy (2005) 36 Cal.4th 595. By contrast, if the appellate court is in as good a position as the trial court to decide the issue, it may conduct an independent review. Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1024-27; Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 214; Eisenberg, Horvitz & Weiner, California Practice Guide: Civil Appeals and Writs § 8:92. Thus, when the factual disputes are limited or overshadowed by the scope of the legal issues, appellate counsel may argue to the higher court “You have the better canal for this case. You should use it.”
At least two further questions arise out of this hierarchical principle.
15. Would independent review help the development of a defined set of rules and/or a helpful body of precedent?
People v. Kennedy (2005) 36 Cal.4th 595 (whether a pre-trial identification was “unduly suggestive”); People v. Cromer (2004) 24 Cal.4th 889, 901 (whether State exercised “due dilligence” in attempting to locate witness); Ghirardo v. Antotinioli (1994) 8 Cal.4th 791, 800-810 (a determination that a particular transaction is usurious “can have practical significance far beyond the confines of the case before the court.”)
16. Is a constitutional right at stake?
According to People v. Cromer (2001) 24 Cal.4th 889, 901, the California Supreme Court routinely exercises independent review of “mixed question determinations affecting constitutional rights.” Accord, People v Kennedy (2005) 36 Cal.4th 595. This policy is also routinely applied in First Amendment cases. Even in constitutional cases, however, deference is accorded to historical facts decided by the trial court where the trial court has a superior capacity to resolve credibility issues. Id. at 900.
Some cases also hold or suggest that an exercise of discretion which may involve the violation of a constitutional right should be reviewed de novo. See, State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67; Scott v. United States (D.C. Cir. 1969) 491 F.2d 264 (defendant’s election of trial by jury rather than plea of guilt cannot be relied upon at sentencing); Thomas v. United States (5 Cir. 1966) 368 F.2d 941 (same); Unites States v. Weston (9 Cir. 1971) 448 F.2d 626, cert. den. 404 U.S. 1061 (as a matter of due process, sentence may not be based upon information of little value). Bell v. Farmers Insurance Exchange (2004) 115 Cal.App.4th 715, 751, 756, Thus, in Bell the court held that while it was within the discretion of the trial court to use statistical inferences, the use of statistical estimates with a 34% margin of error violated due process.
17. Are there policy considerations which favor independent review?
“The deference given trial court decisions on appeal is a policy consideration that may be strengthened or weakened by other policy considerations.” California Civil Appellate Practice section 5.28 (C.E.B. 2003) Some discretionary decisions may be tattooed for closer scrutiny. See, e.g., Lawrence v. State (1985) 171 Cal.App.3d 242 (denying application to file late tort claim against state contrary to policy of trial on the merits); United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 233 (A trial court’s dismissal of an action for failure to prosecute under the two year statute “is subject to closer appellate scrutiny.”) Eebersol v. Cowan (1983) 35 Cal.3d 427 , 435; Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283; In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572 (judicial disqualification motions require “careful review”).
Thus, Rappleyea v. Campbell (1994) 8 Cal.4th 975 involved the policy in favor of a trial on the merits. This may in part explain why the Supreme Court ignored the dissent’s reliance upon Griffith v. San Diego College for Women (1955) 45 Cal.2d 501, 508, which holds that when “an order [is] made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.”
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