Conservatorship of O.B. ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
Conservatorship of the Person of O.B.
T.B. et al., as Coconservators, etc.,
Petitioners and Respondents,
v.
O.B.,
Objector and Appellant.
S254938
Second Appellate District, Division Six
B290805
Santa Barbara County Superior Court
17PR00325
July 27, 2020
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.
CONSERVATORSHIP OF O.B.
S254938
Opinion of the Court by Cantil-Sakauye, C. J.
Measured by the certainty each demands, the standard of
proof known as clear and convincing evidence — which requires
proof making the existence of a fact highly probable — falls
between the “more likely than not” standard commonly referred
to as a preponderance of the evidence and the more rigorous
standard of proof beyond a reasonable doubt. We granted
review in this case to clarify 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.
The issue arises here after the probate court appointed
limited coconservators for O.B., a young woman with autism. In
challenging this order, O.B. argues that the proof before the
probate court did not clearly and convincingly establish that a
limited conservatorship was warranted. (See Prob. Code,
§ 1801, subd. (e) [“The standard of proof for the appointment of
a conservator pursuant to this section shall be clear and
convincing evidence”].)
There is a split of opinion over how an appellate court
should address a claim of insufficient evidence such as the one
advanced here. One approach accounts for the fact that the
clear and convincing standard of proof requires greater certainty
than the preponderance standard does. Courts adopting this
view inquire whether the record developed before the trial court
contains substantial evidence allowing a reasonable factfinder
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to make the challenged finding with the confidence required by
the clear and convincing standard. (E.g., T.J. v. Superior Court
(2018) 21 Cal. App. 5th 1229, 1239-1240 (T.J.).) Another position
maintains that the clear and convincing standard of proof has
no bearing on appellate review for sufficiency of the evidence.
(E.g., In re Marriage of Murray (2002) 101 Cal. App. 4th
581, 604.) From this perspective, a court reviewing a finding
requiring clear and convincing proof surveys the record for
substantial evidence, without also considering whether this
evidence reasonably could have yielded a finding made with the
specific degree of certainty required by the clear and convincing
standard.
We conclude that 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 this 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.
Because the Court of Appeal below took the position that
the clear and convincing standard of proof “ ‘ “disappears” ’ ” on
appeal (Conservatorship of O.B. (2019) 32 Cal. App. 5th 626, 633)
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when it rejected O.B.’s challenge to the sufficiency of the
evidence, we reverse.
I. BACKGROUND
In August 2017, respondents T.B. and C.B. filed a petition
in Santa Barbara County Superior Court requesting that they
be appointed as limited coconservators for O.B., a young woman
with autism spectrum disorder. T.B. and C.B. are O.B.’s mother
and older sister, respectively. At the time T.B. and C.B. filed
their petition, O.B. was 18 years old and resided with her great-
grandmother, L.K., in Santa Barbara County.
The public defender was appointed as counsel for O.B.
(See Prob. Code, § 1471.) A contested evidentiary hearing was
held in the probate court to determine whether a limited
conservatorship should be imposed. This hearing was conducted
across several court sessions occurring between September 2017
and May 2018, with the probate court judge sitting as the trier
of fact. Several witnesses testified at the hearing. Among them,
T.B., C.B., L.K., and a cousin of O.B. testified to their
interactions with and observations of O.B. Dr. Kathy Khoie, a
psychologist, testified that in her opinion, O.B. was not a proper
candidate for a limited conservatorship. Christopher Donati, an
investigator with the Santa Barbara County Public Guardian’s
Office, similarly testified that he did not feel a limited
conservatorship was necessary.
Before ruling on a limited conservatorship, the judge
stated that he had “been involved in numerous hearings, and
[O.B.] has been at all of them or most of them. So in addition to
some of the different witnesses I am entitled to base my decision
based in part on my own observation of [O.B.] at the
proceedings.” The judge found that a limited conservatorship
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was “appropriate” and appointed T.B. and C.B. as limited
coconservators. The parties were asked if any requested a
statement of decision. No one did, and the judge did not
otherwise explain in detail how he had arrived at his findings.
He said, “I can go through and comment on everybody’s
testimony. I don’t see any reason to do that. The reviewing
court can look at the record.”
O.B. appealed, raising several claims of error. The Court
of Appeal affirmed. As relevant here, the appellate court
rejected O.B.’s argument that the evidence before the probate
court was insufficient to justify the appointment of limited
coconservators. In making this argument, O.B. explained that
the clear and convincing standard of proof applies to the decision
to appoint a limited conservator and argued that the Court of
Appeal “must apply the same standard in determining whether
‘substantial evidence’ supports the judgment.” (Conservatorship
of O.B., supra, 32 Cal.App.5th at p. 633.) In finding the evidence
sufficient, the Court of Appeal observed that, contrary to O.B.’s
position, “ ‘The “clear and convincing” standard . . . is for the
edification and guidance of the trial court and not a standard for
appellate review. [Citations.] “ ‘The sufficiency of evidence to
establish a given fact, where the law requires proof of the fact to
be clear and convincing, is primarily a question for the trial
court to determine, and if there is substantial evidence to
support its conclusion, the determination is not open to review
on appeal.’ [Citations.]” [Citation.] Thus, on appeal from a
judgment required to be based upon clear and convincing
evidence, “the clear and convincing test disappears . . . [and] the
usual rule of conflicting evidence is applied, giving full effect to
the respondent’s evidence, however slight, and disregarding the
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appellant’s evidence, however strong.” [Citation.]’ [Citation.]”
(Id., at pp. 633-634.)1
We granted review.
II. DISCUSSION
Our analysis of the issue before us begins with an
explanation of the clear and convincing standard of proof and a
survey of its various applications. We next assess how appellate
courts have perceived their role in reviewing claims that the
evidence before the trial court did or did not satisfy the clear and
convincing standard. Ultimately, we conclude that logic, sound
policy, and precedent all point toward the same conclusion:
When 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.
A. Clear and Convincing Evidence as a Standard of
Proof
A “ ‘[b]urden of proof’ means the obligation of a party to
establish by evidence a requisite degree of belief concerning a
fact in the mind of the trier of fact or the court.” (Evid. Code,
§ 115.) “The burden of proof may require a party to . . . establish
the existence or nonexistence of a fact by a preponderance of the
evidence, by clear and convincing proof, or by proof beyond a
reasonable doubt.” (Ibid.) The standard of proof that applies to
a particular determination serves “to instruct the fact finder
concerning the degree of confidence our society deems necessary
1
The Court of Appeal also rejected other claims of error
raised by O.B. (Conservatorship of O.B., supra, 32 Cal.App.5th
at pp. 632-633, 635-636), none of which are presently before us.
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in the correctness of factual conclusions for a particular type of
adjudication, to allocate the risk of error between the litigants,
and to indicate the relative importance attached to the ultimate
decision.” (Conservatorship of Wendland (2001) 26 Cal. 4th 519,
546 (Wendland); see also In re Winship (1970) 397 U.S. 358, 369-
373 (conc. opn. of Harlan, J.).)
“The default standard of proof in civil cases is the
preponderance of the evidence.” (Wendland, supra, 26 Cal.4th
at p. 546, citing Evid. Code, § 115.) This standard “ ‘simply
requires the trier of fact “to believe that the existence of a fact is
more probable than its nonexistence.” ’ ” (In re Angelia P. (1981)
28 Cal. 3d 908, 918.) The more demanding standard of proof
beyond a reasonable doubt, meanwhile, applies to findings of
guilt in criminal matters. (In re Winship, supra, 397 U.S. at
p. 364.) Reasonable doubt “ ‘is not a mere possible doubt;
because everything relating to human affairs is open to some
possible or imaginary doubt. It is that state of the case, which,
after the entire comparison or consideration of all the evidence,
leaves the minds of jurors in that condition that they cannot say
they feel an abiding conviction of the truth of the charge.” (Pen.
Code, § 1096.)
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 a finding of high
probability.” (In re Angelia P., supra, 28 Cal.3d at p. 919; see
also CACI No. 201 [“Certain facts must be proved by clear and
convincing evidence . . . . This means the party must persuade
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you that it is highly probable that the fact is true”].)2 One
commentator has explicated, “The precise meaning of ‘clear and
convincing proof’ does not lend itself readily to definition. It is,
in reality, a question of how strongly the minds of the trier or
triers of fact must be convinced that the facts are as contended
by the proponent. . . . Where clear and convincing proof is
required, the proponent must convince the jury or judge, as the
case may be, that it is highly probable that the facts which he
asserts are true. He must do more than show that the facts are
probably true.” (Comment, Evidence: Clear and Convincing
Proof: Appellate Review (1944) 32 Cal. L.Rev. 74, 75.)
Today, the clear and convincing standard applies to
various determinations “ ‘where particularly important
individual interests or rights are at stake,’ such as the
termination of parental rights, involuntary commitment, and
deportation.” (Weiner v. Fleischman (1991) 54 Cal. 3d 476, 487,
quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375,
389; see also Santosky v. Kramer (1982) 455 U.S. 745, 769;
Addington v. Texas (1979) 441 U.S. 418, 423-424; Woodby v.
Immigration Service (1966) 385 U.S. 276, 285-286.) Other
findings requiring clear and convincing proof include whether a
civil defendant is guilty of the “oppression, fraud, or malice” that
allows for the imposition of punitive damages (Civ. Code, § 3294,
subd. (a)), whether a conservator can withdraw life-sustaining
care from a conservatee (Wendland, supra, 26 Cal.4th at p. 524),
whether conditions necessary for the nonconsensual,
2
The clear and convincing standard also has been described
“as requiring that the evidence be ‘ “so clear as to leave no
substantial doubt”; “sufficiently strong to command the
unhesitating assent of every reasonable mind.” ’ ” (In re Angelia
P., supra, 28 Cal.3d at p. 919.)
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nonemergency administration of psychiatric medication to a
prison inmate have been satisfied (Pen. Code, § 2602, subd.
(c)(8)), and whether a publisher acted with the intent (“actual
malice”) that must be shown for a plaintiff to prevail in certain
kinds of defamation cases (Gertz v. Robert Welch, Inc. (1974)
418 U.S. 323, 342).
Going further back in time, “[t]he requirement in civil
actions of more than a preponderance of the evidence was first
applied in equity to claims which experience had shown to be
inherently subject to fabrication, lapse of memory, or the
flexibility of conscience.” (Note, Appellate Review in the Federal
Courts of Findings Requiring More than a Preponderance of the
Evidence (1946) 60 Harv. L.Rev. 111, 112.) This court’s early
case law addressing the clear and convincing standard of proof
commonly involved claims of this character, such as assertions
that a written instrument should be reformed on the basis of
fraud, mistake, or parol evidence. In one early case of this kind,
Lestrade v. Barth (1862) 19 Cal. 660, we observed that when the
correction of a mistake in a written instrument was sought in
equity, the evidence showing such a mistake “must be clear and
convincing, making out the mistake to the entire satisfaction of
the Court, and not loose, equivocal or contradictory, leaving the
mistake open to doubt.” (Id., at p. 675.) We later stated in
Sheehan v. Sullivan (1899) 126 Cal. 189 (Sheehan) that “[t]he
authorities are uniform to the point that to justify a court in
determining from oral testimony that a deed which purports to
convey land absolutely in fee simple was intended to be
something different, as a mortgage or trust, such testimony
must be clear, convincing, and conclusive — something more
than that modicum of evidence which appellate courts
sometimes hold sufficient to warrant a finding where the matter
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is not so serious as the overthrow of a clearly expressed deed,
solemnly executed and delivered.” (Id., at p. 193.)
B. Consideration of the Clear and Convincing
Standard in Appellate Review for Sufficiency of
the Evidence
The court in Sheehan, supra, 126 Cal. 189, also addressed
how other appellate courts had evaluated claims that parol
evidence introduced before the trial court had not adequately
established that a written deed instrument, absolute on its face,
was in fact a mortgage or trust. Our opinion in Sheehan
observed that through such matters (e.g., Mahoney v. Bostwick
(1892) 96 Cal. 53) the authorities “clearly declare that the rule,
as above stated [requiring clear and convincing evidence that
the intent was contrary to the deed’s terms], should govern trial
courts, and that, where an absolute deed has been found to be
something else, the sufficiency of the evidence to support the
finding should be considered by the appellate court in the light
of that rule.” (Sheehan, at p. 193, italics added.) In other words,
even though the standard of clear and convincing evidence
directly governed only the determination made by the trier of
fact, appellate courts assessing the sufficiency of the evidence
still had to take this standard of proof into account by
appropriately reframing their inquiry.
It was understood even at the time Sheehan was decided
that this adjustment in appellate perspective when the clear and
convincing standard applied below did not provide reviewing
courts with a liberal license to substitute their views for the
conclusions drawn by the trier of fact on matters such as witness
credibility and the resolution of conflicts in the evidence. In
Jarnatt v. Cooper (1881) 59 Cal. 703, for example, this court had
explained, “It is doubtless a well-settled rule that the party
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alleging fraud or mistake is bound to prove his allegation by
clear and convincing evidence. That is, that the evidence which
tends to prove the alleged fraud or mistake, if standing alone,
uncontradicted, would establish a clear prima facie case of fraud
or mistake. If it does not, this Court may reverse the judgment
on the ground of insufficiency of the evidence to justify the
decision. But where the evidence which tends to prove fraud or
mistake, if standing alone, uncontradicted, is sufficiently clear
and convincing, we can not reverse the judgment on the ground
that such evidence is contradicted by other evidence, because
the right to pass upon the credibility of witnesses is not vested
in this Court.” (Id., at p. 706.)
Since Sheehan, we have reiterated — albeit sometimes
subtly — that when the clear and convincing standard of proof
applied in the trial court, an appellate court should review the
record for sufficient evidence in a manner mindful of the
elevated degree of certainty required by this standard. This
guidance often has been coupled with language recognizing the
limits of such review. More than a century ago, in Wadleigh v.
Phelps (1906) 149 Cal. 627, we upheld a finding that a deed,
absolute on its face, was in fact a mortgage. (Id., at p. 639.) In
doing so, we expounded, “It is, of course, the universal rule that
the presumption of law, independent of proof, is that such a deed
is what it purports to be — viz. an absolute conveyance — and
that this presumption must prevail unless the evidence to the
contrary is entirely plain and convincing. This, however, does
not mean that the evidence in the record on appeal must be
entirely plain and convincing to an appellate court. This
question of fact, like other questions of fact, is one for the trial
court, and while, as said in Sheehan v. Sullivan, 126 Cal. 189,
193 . . . , the appellate court will consider the question as to the
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sufficiency of the evidence in the light of that rule, it will not
disturb the finding of the trial court to the effect that the deed
is a mortgage, where there is substantial evidence warranting a
clear and satisfactory conviction to that effect. All questions as
to preponderance and conflict of evidence are for the trial court.”
(Id., at p. 637, italics added; see also Title Ins. and Trust Co. v.
Ingersoll (1910) 158 Cal. 474, 484; Couts v. Winston (1908)
153 Cal. 686, 688-689.)
Several of our more recent decisions involving the clear
and convincing standard of proof also have recognized that this
standard affects a reviewing court’s assessment of the
sufficiency of the evidence. In In re Angelia P., supra, 28 Cal. 3d
908, we stated that when reviewing the sufficiency of the
evidence supporting an order terminating parental rights,
issued upon a finding of clear and convincing evidence (see Civ.
Code, former § 232, subd. (a)), “ ‘the [appellate] court must
review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and
of solid value — such that a reasonable trier of fact could find
[that termination of parental rights is appropriate based on
clear and convincing evidence].’ ” (In re Angelia P., at p. 924; see
also In re Jasmon O. (1994) 8 Cal. 4th 398, 423 [taking a similar
view of the appellate court’s responsibility in reviewing a finding
under Civ. Code, former § 232].) In Wendland, supra, 26 Cal. 4th
519, where we reviewed a finding by the trial court that the clear
and convincing standard had not been satisfied, we described
our task as follows: “The ‘clear and convincing evidence’ test
requires a finding of high probability . . . . Applying that
standard here, we ask whether the evidence . . . has that degree
of clarity . . . .” (Id., at p. 552.) And most recently, in In re White
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(2020) 9 Cal. 5th 455, 465 (White), we specified, “To deny bail
under article I, section 12(b) [of the California Constitution], a
trial court must also find, by clear and convincing evidence, “a
substantial likelihood the person’s release would result in great
bodily harm to others.’ [Citation.] . . . On review, we consider
whether any reasonable trier of fact could find, by clear and
convincing evidence, a substantial likelihood that the person’s
release would lead to great bodily harm to others.”
As respondents observe, we have on other occasions
provided somewhat different descriptions of the reviewing
court’s role in evaluating a finding requiring clear and
convincing evidence. We often have emphasized the appellate
court’s general responsibility to review the record for
substantial evidence, even when the clear and convincing
standard of proof applied before the trial court. (E.g., In re
Marriage of Saslow (1985) 40 Cal. 3d 848, 863; Crail v. Blakely
(1973) 8 Cal. 3d 744, 750 (Crail); Nat. Auto & Cas. Co. v. Ind.
Acc. Com. (1949) 34 Cal. 2d 20, 25; Viner v. Untrecht (1945)
26 Cal. 2d 261, 267; Stromerson v. Averill (1943) 22 Cal. 2d 808,
815 (Stromerson); Simonton v. Los Angeles T. & S. Bank (1928)
205 Cal. 252, 259; Treadwell v. Nickel (1924) 194 Cal. 243, 260-
261; Steinberger v. Young (1917) 175 Cal. 81, 84-85
(Steinberger).) In Crail, we explained that the clear and
convincing “standard was adopted . . . for the edification and
guidance of the trial court, and was not intended as a standard
for appellate review. ‘The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to
determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.’ ”
(Crail, at p. 750.) Respondents extract from these decisions the
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principle that appellate review of a finding made under the clear
and convincing standard is limited to whether the finding is
supported by evidence that is “credible, reasonable, and solid”
— words commonly used in describing “substantial evidence.”
(See In re Teed’s Estate (1952) 112 Cal. App. 2d 638, 644.)3
The decisions of the Courts of Appeal also do not speak
with one clear voice regarding how appellate review for
sufficiency of the evidence should unfold when the standard of
proof before the trial court was clear and convincing evidence.
(T.J., supra, 21 Cal.App.5th at pp. 1238-1239 [discussing the
views expressed on this subject].) One view downplays the
significance of the clear and convincing standard of proof in this
3
Dissenting in Stromerson, supra, 22 Cal. 2d 808, Justice
Traynor wrote, “While it rests primarily with the trial court to
determine whether the evidence is clear and convincing, its
finding is not necessarily conclusive, for in cases governed by the
rule requiring such evidence ‘the sufficiency of the evidence to
support the finding should be considered by the appellate court
in the light of that rule.’ (Sheehan[, supra], 126 Cal. 189, 193;
[citation].) In such cases it is the duty of the appellate court in
reviewing the evidence to determine, not simply whether the
trier of facts could reasonably conclude that it is more probable
that the fact to be proved exists than that it does not, as in the
ordinary civil case where only a preponderance of the evidence is
required . . . but to determine whether the trier of facts could
reasonably conclude that it is highly probable that the fact
exists. When it [is held] that the trial court’s finding must be
governed by the same test with relation to substantial evidence
as ordinarily applies in other civil cases, the rule that the
evidence must be clear and convincing becomes meaningless.”
(Id., at pp. 817-818 (dis. opn. of Traynor, J.); see also Traynor,
The Riddle of Harmless Error (1970) p. 29 [“When it is the
responsibility of the trier of fact to observe the requirement of
clear and convincing evidence . . . it becomes the responsibility of
the appellate court to test the finding accordingly”].)
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context. Within this group, a few courts have flatly stated that
a requirement of clear and convincing proof before the trial court
does not necessitate any modifications to the conventional
approach to appellate review for substantial evidence in a civil
matter. (Ian J. v. Peter M. (2013) 213 Cal. App. 4th 189, 208; In
re Marriage of Ruelas (2007) 154 Cal. App. 4th 339, 345; In re
Marriage of Murray (2002) 101 Cal. App. 4th 581, 604; Patrick v.
Maryland Casualty Co. (1990) 217 Cal. App. 3d 1566, 1576.)
Thus it has been said, “[t]he substantial evidence rule that
applies on appeal, applies without regard to the standard of
proof applicable at trial” (In re Marriage of Ruelas, at p. 345),
meaning that a court reviewing a finding requiring clear and
convincing proof is “not required to find more substantial
evidence to support the trial court’s finding ‘than [it] would if
the burden of proof had been only a preponderance of the
evidence’ ” (Ian J. v. Peter M., at p. 208).
Many courts have drawn a similar lesson from the Witkin
treatise on California Procedure, which provides in relevant
part, “In a few situations, the law requires that a party produce
more than an ordinary preponderance; he or she must establish
a fact by ‘clear and convincing evidence.’ [Citations.] But the
requirement applies only in the trial court. The judge may reject
a showing as not measuring up to the standard, but, if the judge
decides in favor of the party with this heavy burden, the clear
and convincing test disappears. On appeal, the usual rule of
conflicting evidence is applied, giving full effect to the
respondent’s evidence, however slight, and disregarding the
appellant’s evidence, however strong.” (9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 371, p. 428, italics added.)
The assertion that “the clear and convincing test disappears”
(ibid.) on appeal fairly imparts that this standard of proof has
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no bearing whatsoever on appellate review for sufficiency of the
evidence.4
Another viewpoint regards an appellate court as obligated
to review the record for substantial evidence in a manner
mindful of the fact that the clear and convincing standard of
proof applied before the trial court.5 This approach recently was
4
The following Court of Appeal decisions have echoed the
Witkin treatise’s “disappears” phrasing: Morgan v. Davidson
(2018) 29 Cal. App. 5th 540, 549; In re Alexzander C. (2017)
18 Cal. App. 5th 438, 451; Parisi v. Mazzaferro (2016)
5 Cal. App. 5th 1219, 1227, footnote 11; In re Z.G. (2016)
5 Cal. App. 5th 705, 720; In re F.S. (2016) 243 Cal. App. 4th 799,
812; In re J.S. (2014) 228 Cal. App. 4th 1483, 1493; In re Marriage
of E. & Stephen P. (2013) 213 Cal. App. 4th 983, 989-990; Ian J.
v. Peter M., supra, 213 Cal.App.4th at page 208; In re A.S. (2011)
202 Cal. App. 4th 237, 247; In re K.A. (2011) 201 Cal. App. 4th 905,
909; In re Levi H. (2011) 197 Cal. App. 4th 1279, 1291; In re E.B.
(2010) 184 Cal. App. 4th 568, 578; In re I.W. (2009)
180 Cal. App. 4th 1517, 1526; In re Angelique C. (2003)
113 Cal. App. 4th 509, 519; In re J.I. (2003) 108 Cal. App. 4th 903,
911; In re Mark L. (2001) 94 Cal. App. 4th 573, 580-581; Sheila S.
v. Superior Court (2000) 84 Cal. App. 4th 872, 881; Ensworth v.
Mullvain (1990) 224 Cal. App. 3d 1105, 1111, footnote 2.
5
E.g., Johnson & Johnson Talcum Powder Cases (2019)
37 Cal. App. 5th 292, 333; T.J., supra, 21 Cal.App.5th at pages
1239-1240; Pulte Home Corp. v. American Safety Indemnity Co.
(2017) 14 Cal. App. 5th 1086, 1125; Pfeifer v. John Crane, Inc.
(2013) 220 Cal. App. 4th 1270, 1299; In re Hailey T. (2012)
212 Cal. App. 4th 139, 146; In re Alexis S. (2012) 205 Cal. App. 4th
48, 54; In re Andy G. (2010) 183 Cal. App. 4th 1405, 1415; In re
William B. (2008) 163 Cal. App. 4th 1220, 1229; In re Baby Girl
M. (2006) 135 Cal. App. 4th 1528, 1536; In re Henry V. (2004)
119 Cal. App. 4th 522, 530; In re Isayah C. (2004) 118 Cal. App. 4th
684, 694; In re Alvin R. (2003) 108 Cal. App. 4th 962, 971; In re
Luke M. (2003) 107 Cal. App. 4th 1412, 1426; Shade Foods, Inc. v.
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Opinion of the Court by Cantil-Sakauye, C. J.
adopted by the court in connection with a dependency
proceeding (see Welf. & Inst. Code, § 366.21, subd. (g)(1)(C)(ii))
in T.J., supra, 21 Cal. App. 5th 1229. The court in T.J. observed
that “[i]f the clear and convincing evidence standard ‘disappears’
on appellate review, that means the distinction between the
preponderance standard and the clear and convincing
standard . . . is utterly lost on appeal . . . .” (T.J., at p. 1239.)
Such an outcome was regarded as compromising “the integrity
of the review process,” because if the clear and convincing
standard has no bearing whatsoever on appellate review, “the
ability of the appellate court to correct error is unacceptably
weakened.” (Ibid.) Moved by these considerations, the court in
T.J. concluded that it must “ ‘review the record in the light most
favorable to the trial court’s order to determine whether there is
substantial evidence from which a reasonable trier of fact could
make the necessary findings based on the clear and convincing
evidence standard.’ ” (Ibid., quoting In re Isayah C., supra,
118 Cal.App.4th at p. 694.)
All in all, it would be a fair summarization to say that
although the trend within our more recent decisions has been to
recognize that the application of the clear and convincing
standard of proof before the trial court affects appellate review
for sufficiency of the evidence, our case law also contains
contrary suggestions that have contributed to what is now a
significant split of authority among the Courts of Appeal.
Innovative Products Sales & Marketing, Inc. (2000)
78 Cal. App. 4th 847, 891; In re Kristin H. (1996) 46 Cal. App. 4th
1635, 1654; In re Basilio T. (1992) 4 Cal. App. 4th 155, 170-171;
Osal v. United Services Auto. Assn. (1991) 2 Cal. App. 4th 1197,
1200; In re Victoria M. (1989) 207 Cal. App. 3d 1317, 1326; In re
Amos L. (1981) 124 Cal. App. 3d 1031, 1038.
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Opinion of the Court by Cantil-Sakauye, C. J.
C. The Clear and Convincing Standard of Proof
Informs Appellate Review for Substantial
Evidence
We now dispel this uncertainty over the proper manner of
appellate review by clarifying that an appellate court evaluating
the sufficiency of the evidence in support of a finding must make
an appropriate adjustment to its analysis when the clear and
convincing standard of proof applied before the trial court. In
general, when presented with a challenge to the sufficiency of
the evidence associated with a finding requiring clear and
convincing evidence, the court must determine whether the
record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof.6
This rule finds support in logic, in the policy interests that
are often implicated when clear and convincing evidence
supplies the standard of proof, and in precedent. First, “[a]s a
matter of logic, a finding that must be based on clear and
convincing evidence cannot be viewed on appeal the same as one
that may be sustained on a mere preponderance.” (In re C.H.
(Tex. 2002) 89 S.W.3d 17, 25.) As we have long acknowledged
(see, e.g., Sheehan, supra, 126 Cal. at p. 193), the clear and
convincing standard of proof normally applies directly only
before the trial court; appellate courts normally do not decide
6
In announcing only a general rule, we recognize that
different forms of appellate review may apply in certain
circumstances when a determination has been made by the trier
of fact under the clear and convincing standard of proof. (See,
e.g., McCoy v. Hearst Corp. (1986) 42 Cal. 3d 835, 845-846
[discussing appellate review of findings of actual malice in
defamation suits].)
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Opinion of the Court by Cantil-Sakauye, C. J.
whether they themselves believe the evidence was so probative.
And the fundamental question before an appellate court
reviewing for sufficiency of the evidence is the same, regardless
of the standard of proof that applied below: whether any
reasonable trier of fact could have made the finding that is now
challenged on appeal. But the issue before a reviewing court in
a given case is whether the trier of fact could have made the
finding it did arrive upon, rather than a hypothetical finding
involving a different standard of proof. Therefore, when
reviewing a finding that demands clear and convincing
evidence, an appellate court must determine whether the
evidence reasonably could have led to a finding made with the
specific degree of confidence required by this standard.
Taking the clear and convincing standard into account in
this context is also logically consistent with the principle that
an appellate court addressing a claim of insufficient proof
reviews the record for substantial evidence supporting the
challenged finding. Substantial evidence is evidence that is “of
ponderable legal significance,” “reasonable in nature, credible,
and of solid value,” and “ ‘substantial’ proof of the essentials
which the law requires in a particular case.” (In re Teed’s Estate,
supra, 112 Cal.App.2d at p. 644.) Respondents draw from this
definition of substantial evidence in advocating for their
approach to appellate review. They assert that “[s]olid, credible
evidence is . . . by definition, clear and convincing because we
have rationally invested with determinative significance the
trial court’s rejection — on credibility, persuasiveness, or other
grounds — of the evidence to the contrary,” and “[t]he evidence
necessary to support the decision below must be credible,
reasonable, and solid; otherwise the judgment will be reversed.”
But these assertions ignore part of what makes substantial
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Opinion of the Court by Cantil-Sakauye, C. J.
evidence substantial. Even if evidence is capable of being
regarded as “credible,” “reasonable,” and “solid,” to amount to
substantial evidence it also must be “of ponderable legal
significance.” (In re Teed’s Estate, at p. 644.) And whether
evidence is “of ponderable legal significance” (ibid.) cannot be
properly evaluated in situations such as the one at bar without
accounting for the heightened standard of proof that applied
before the trial court.
Second, keeping the clear and convincing standard in
mind when reviewing for sufficiency of the evidence helps
ensure that an appropriate degree of appellate scrutiny attaches
to findings to which this standard applies. As previously noted,
the clear and convincing standard is used for various
determinations where “ ‘particularly important individual
interests or rights are at stake.’ ” (Weiner v. Fleischman, supra,
54 Cal.3d at p. 487.) The selection of the clear and convincing
standard in these situations reflects “a very fundamental
assessment of the comparative social costs of erroneous factual
determinations.” (In re Winship, supra, 397 U.S. at p. 370 (conc.
opn. of Harlan, J.).) That is to say, the significant consequences
of an erroneous true finding when these interests or rights are
involved — such as an improper deportation, an unnecessary
involuntary commitment, or an unjustified termination of
parental rights — support the application of a heightened
standard of proof, relative to the preponderance standard. Yet
the use of a clear and convincing standard of proof before the
trial court may not by itself completely protect these interests,
because “the trier of fact will sometimes, despite his best efforts,
be wrong in his factual conclusions.” (Ibid.) Admittedly, an
appellate court that gives appropriate deference to the trier of
fact will not be in a position to detect or correct some of these
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Opinion of the Court by Cantil-Sakauye, C. J.
errors. But when a review of the record establishes that no
reasonable factfinder could have found a matter proved to a
degree of high probability, appellate intervention reaffirms that
the interests involved are of special importance, that their
deprivation requires a greater burden to be surmounted, and
that the judicial system operates in a coordinated fashion to
ensure as much.
Third, our holding is more consistent with our recent
precedent and with the case law of other state high courts than
would be a contrary rule that would have appellate courts ignore
the clear and convincing standard when reviewing for
substantial evidence. As discussed ante, in In re Angelia P.,
supra, 28 Cal.2d at page 924, In re Jasmon O., supra, 8 Cal.4th
at page 423, Wendland, supra, 26 Cal.4th at page 552, and
White, supra, 9 Cal.5th at page 465, we recognized that the
applicability of the clear and convincing standard of proof before
the trial court was relevant to appellate review of the
evidentiary record. (Cf. Dart Industries, Inc. v. Commercial
Union Ins. Co. (2002) 28 Cal. 4th 1059, 1082 (conc. opn. of Brown.
J.).) Moreover, a survey of the case law of other state courts of
last resort reveals numerous recent decisions in which these
courts have calibrated their review for sufficient evidence to
reflect that the clear and convincing standard of proof applied to
the finding at issue. (E.g., In re N.G. (Ind. 2016) 51 N.E.3d 1167,
1170; Moore v. Stills (Ky. 2010) 307 S.W.3d 71, 82-83; In re B.D.-
Y. (Kan. 2008) 187 P.3d 594, 606; Ex parte McInish (Ala. 2008)
47 So. 3d 767, 778; In re B.T. (N.H. 2006) 891 A.2d 1193, 1198;
In re S.B.C. (Okla. 2002) 64 P.3d 1080, 1083; In re C.H., supra,
89 S.W.3d at p. 25; Hudak v. Procek (Del. 2002) 806 A.2d 140,
150; Rogers v. Moore (Minn. 1999) 603 N.W.2d 650, 658; In re
N.H. (Vt. 1998) 724 A.2d 467, 470; Estate of Robinson v. Gusta
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Opinion of the Court by Cantil-Sakauye, C. J.
(Miss. 1989) 540 So. 2d 30, 33; In Interest of Bush (Idaho 1988)
749 P.2d 492, 495; Taylor v. Commissioner of Mental Health
(Me. 1984) 481 A.2d 139, 153; Blackburn v. Blackburn (Ga.
1982) 292 S.E.2d 821, 826.)
Our approach also harmonizes with the firmly established
rule in criminal cases that the prosecution’s burden of proving a
defendant’s guilt beyond a reasonable doubt affects how an
appellate court reviews the record for substantial evidence. In
Jackson v. Virginia (1979) 443 U.S. 307 (Jackson), the United
States Supreme Court considered “what standard is to be
applied in a federal habeas corpus proceeding when the claim is
made that a person has been convicted in a state court upon
insufficient evidence.” (Id., at p. 309.) The Jackson court
decided that “the critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must be not simply
to determine whether the jury was properly instructed, but to
determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.” (Id., at
p. 318.) The high court explained that “this inquiry does not
require a court to ‘ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable
doubt.’ [Citation.] Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
[Citation.] This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Once a defendant
has been found guilty of the crime charged, the factfinder’s role
as weigher of the evidence is preserved through a legal
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Opinion of the Court by Cantil-Sakauye, C. J.
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.” (Id.,
at pp. 318-319.)
The decision in Jackson prompted this court “to review
and define the California standard for review” of a claim brought
by a defendant on direct appeal alleging that a criminal
conviction lacked sufficient support in the evidentiary record.
(People v. Johnson (1980) 26 Cal. 3d 557, 562.) We concluded in
Johnson that the standard of review already established by our
case law was consistent with the rule announced in Jackson.
(Johnson, at p. 577.) “[W]henever the evidentiary support for a
conviction faces a challenge on appeal,” we determined, “the
court must review the whole record in the light most favorable
to the judgment below to determine whether it discloses
substantial evidence such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.” (Id., at
p. 562.) We observed that when engaging in this review, an
appellate court “ ‘must view the evidence in a light most
favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce
from the evidence.’ ” (Id., at p. 576.)
Thus it has long been the law that appellate inquiry into
the sufficiency of the evidence associated with a criminal
conviction both accounts for the beyond a reasonable doubt
standard of proof that applied before the trial court and extends
an appropriate degree of deference to the perspective of the trier
of fact. And with infrequent exceptions, appellate courts have
grasped what this kind of review entails. This experience
contradicts respondents’ argument that a rule that requires the
clear and convincing standard of proof to be taken into account
when reviewing for substantial evidence will encourage these
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Opinion of the Court by Cantil-Sakauye, C. J.
same courts to overstep their authority by reweighing the
evidence themselves. Out of an abundance of caution, however,
we use this opportunity to emphasize that as in criminal appeals
involving a challenge to the sufficiency of the evidence, an
appellate court reviewing a finding made pursuant to the clear
and convincing standard does not reweigh the evidence itself. In
assessing how the evidence reasonably could have been
evaluated by the trier of fact, an appellate court reviewing such
a finding is to view the record in the light most favorable to the
judgment below; it must indulge reasonable inferences that the
trier of fact might have drawn from the evidence; it must accept
the factfinder’s resolution of conflicting evidence; and it may not
insert its own views regarding the credibility of witnesses in
place of the assessments conveyed by the judgment. (See, e.g.,
People v. Veamatahau (2020) 9 Cal. 5th 16, 35-36; People v.
Gomez (2018) 6 Cal. 5th 243, 278, 307.) To paraphrase the high
court in Jackson, supra, 443 U.S. at page 318, the question
before a court reviewing a finding that a fact has been proved by
clear and convincing evidence is not whether the appellate court
itself regards the evidence as clear and convincing; it is whether
a reasonable trier of fact could have regarded the evidence as
satisfying this standard of proof.
This court’s precedent offers less support for respondents’
position that appellate review for sufficiency of the evidence
should in no way account for the clear and convincing standard
of proof that applied before the trial court. As observed ante,
respondents emphasize language appearing in a line of decisions
beginning with Steinberger, supra, 175 Cal. 81 and including our
statement in Crail, supra, 8 Cal. 3d 744, that the clear and
convincing “standard was adopted . . . for the edification and
guidance of the trial court, and was not intended as a standard
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Opinion of the Court by Cantil-Sakauye, C. J.
for appellate review. ‘The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear and
convincing, is primarily a question for the trial court to
determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.’ ”
(Crail, at p. 750; see also In re Marriage of Saslow, supra,
40 Cal.3d at p. 863; Nat. Auto & Cas. Co. v. Ind. Acc. Com., supra,
34 Cal.2d at p. 25; Viner v. Untrecht, supra, 26 Cal.2d at p. 267;
Stromerson, supra, 22 Cal.2d at p. 815; Simonton v. Los Angeles
T. & S. Bank, supra, 205 Cal. at p. 259; Treadwell v. Nickel,
supra, 194 Cal. at pp. 260-261; Steinberger, 175 Cal. at pp. 84-
85.) Respondents assert that representations such as this
commit this court to the position that the clear and convincing
standard of proof has no bearing on appellate review for
substantial evidence.
We disagree. For starters, it is not perfectly clear that
Steinberger and its progeny all stand for the proposition that the
clear and convincing standard of proof’s application before the
trial court has no effect upon appellate review for sufficiency of
the evidence. As it appeared in Steinberger, supra, 175 Cal. 81,
the assertion that “if there be substantial evidence to support
the conclusion reached below, the finding is not open to review
on appeal” served to clarify a point made earlier in the opinion,
that it was the province of the fact-finder to resolve conflicts in
the evidence. (Id., at p. 85.) Statements in our later decisions
also could be read as stopping well short of the absolutist
position respondents assign to them. To say that clear and
convincing evidence is not a standard for appellate review is
correct in the sense that an appellate court normally does not
itself review the record for clear and convincing proof. Likewise,
representations that an appellate court reviews the record for
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Opinion of the Court by Cantil-Sakauye, C. J.
substantial evidence, without further explanation of what that
evidence must establish, could be understood as more
incomplete than incorrect.
We nevertheless appreciate that the decisions
respondents rely upon have been interpreted, and not entirely
without reason, as casting the clear and convincing standard of
proof as irrelevant to appellate review for sufficiency of the
evidence. (See, e.g., Morgan v. Davidson, supra, 29 Cal.App.5th
at p. 549.) Even so understood, however, these decisions mean
only that our court has in the past sent mixed signals regarding
the issue before us. As we have explained, the clear trend within
our recent case law, which finds support in older decisions of this
court, has been to recognize that 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.
We confirm today that this modern trend is correct. We
therefore disapprove In re Marriage of Saslow, supra, 40 Cal. 3d
848; Crail v. Blakely, supra, 8 Cal. 3d 744; Nat. Auto & Cas. Co.
v. Ind. Acc. Com., supra, 34 Cal. 2d 20; Viner v. Untrecht, supra,
26 Cal. 2d 261; Stromerson v. Averill, supra, 22 Cal. 2d 808;
Simonton v. Los Angeles T. & S. Bank, supra, 205 Cal. 252;
Treadwell v. Nickel, supra, 194 Cal. 243; and Steinberger v.
Young, supra, 175 Cal. 81, to the extent each could be read as
regarding the use of the clear and convincing standard of proof
before the trial court as having no effect on appellate review for
sufficiency of the evidence. (See Moss v. Superior Court (1998)
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Opinion of the Court by Cantil-Sakauye, C. J.
17 Cal. 4th 396, 401; People v. Carbajal (1995) 10 Cal. 4th 1114,
1126.)7
7
Insofar as they are inconsistent with our holding, we also
disapprove Ian J. v. Peter M., supra, 213 Cal. App. 4th 189, In re
Marriage of Ruelas, supra, 154 Cal. App. 4th 339, In re Marriage
of Murray, supra, 101 Cal. App. 4th 581, and Patrick v. Maryland
Casualty Co., supra, 217 Cal. App. 3d 1566, as well as the Court
of Appeal decisions that have described the clear and convincing
standard as disappearing on appeal: Morgan v. Davidson, supra,
29 Cal. App. 5th 540; In re Alexzander C., supra, 18 Cal. App. 5th
438; Parisi v. Mazzaferro, supra, 5 Cal. App. 5th 1219; In re Z.G.,
supra, 5 Cal. App. 5th 705; In re F.S., supra, 243 Cal. App. 4th
799; In re J.S., supra, 228 Cal. App. 4th 1483; In re Marriage of
E. & Stephen P., supra, 213 Cal. App. 4th 983; In re A.S., supra,
202 Cal. App. 4th 237; In re K.A., supra, 201 Cal. App. 4th 905; In
re Levi H., supra, 197 Cal. App. 4th 1279; In re E.B., supra,
184 Cal. App. 4th 568; In re I.W., supra, 180 Cal. App. 4th 1517; In
re Angelique C., supra, 113 Cal. App. 4th 509; In re J.I., supra,
108 Cal. App. 4th 903; In re Mark L., supra, 94 Cal. App. 4th 573;
Sheila S. v. Superior Court, supra, 84 Cal. App. 4th 872; and
Ensworth v. Mullvain, supra, 224 Cal. App. 3d 1105.
We also use this opportunity to comment upon another
provision within the Witkin treatise’s discussion of appellate
review of findings involving clear and convincing evidence.
After observing that “the clear and convincing test disappears”
on appeal, the treatise adds that “[o]n appeal, the usual rule of
conflicting evidence is applied, giving full effect to the
respondent’s evidence, however slight, and disregarding the
appellant’s evidence, however strong.” (9 Witkin, Cal.
Procedure, supra, Appeal, § 371, p. 428.) It should be
understood that even if conflicts in the evidence are viewed this
way by a reviewing court, giving “full effect” to the respondent’s
evidence, “however slight” (ibid.), does not necessarily mean
that this evidence will amount to substantial evidence of
“ponderable legal significance” (In re Teed’s Estate, supra,
112 Cal.App.2d at p. 644) which reasonably could have been
regarded as sufficient to establish a fact with the certainty
required by the clear and convincing standard.
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Opinion of the Court by Cantil-Sakauye, C. J.
Finally, respondents raise a narrower argument sounding
in legislative intent. They assert that even if we were to
conclude here that the clear and convincing standard of proof
does not simply disappear when an appellate court reviews for
substantial evidence, the Legislature thought this standard
vanished on appeal when it enacted the limited conservatorship
statute (Stats. 1990, ch. 79, § 14, p. 523; see also Stats. 1980,
ch. 1304, § 6, p. 4400) and specified that the standard of proof
for the appointment of a conservator is clear and convincing
evidence (Stats. 1995, ch. 842, § 7, p. 6410). Respondents argue
that we should defer to this expectation in interpreting the
requirement of clear and convincing evidence found in Probate
Code section 1801, subdivision (e).
This argument is not persuasive. Respondents fail to
identify anything within the text or legislative history of
Probate Code section 1801 affirmatively establishing that the
Legislature believed the clear and convincing standard of proof
should be ignored by an appellate court reviewing a record for
substantial evidence. Instead, respondents assert that when the
Legislature recognized limited conservatorships and directed
that the clear and convincing standard of proof applies to the
appointment of a conservator, “it did so against the backdrop of
150 years of consistent precedent from this Court squarely
holding that such standards [of proof] direct only the trial court,
and do not apply (‘disappear’) on appeal.” Thus, respondents
claim, the Legislature should be regarded as having implicitly
incorporated this judicially created rule within the statute. As
we have explained, however, our precedent did not consistently
articulate the view respondents ascribe to it. Therefore, even if
we were to regard our case law as informing prevailing
expectations among legislators, and these expectations as
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Opinion of the Court by Cantil-Sakauye, C. J.
reflective of legislative intent, respondents’ argument would
still falter at the outset. Given the mixed signals sent by our
past decisions, we still could not reasonably conclude that when
the Legislature provided for limited conservatorships and
specified in section 1801, subdivision (e) that the appointment
of a conservator requires clear and convincing evidence, it
intended for appellate courts to completely disregard this
standard of proof when reviewing the record developed before
the probate court for substantial evidence.
To summarize, we hold 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.
Because the Court of Appeal below believed that the clear and
convincing standard of proof “ ‘ “disappears” ’ ” on appeal
(Conservatorship of O.B., supra, 32 Cal.App.5th at p. 633), we
remand the cause to that court for it to reevaluate the
sufficiency of the evidence in light of the clarification we have
provided.
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Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and
remand the cause to that court for further proceedings
consistent with this opinion.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
29
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Conservatorship of O.B.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 32 Cal. App. 5th 626
Rehearing Granted
__________________________________________________________________________________
Opinion No. S254938
Date Filed: July 27, 2020
__________________________________________________________________________________
Court: Superior
County: Santa Barbara
Judge: James Rigali
__________________________________________________________________________________
Counsel:
Gerald J. Miller, under appointment by the Supreme Court, for Objector and Appellant.
Greines, Martin, Stein & Richland, Robert A. Olson and Edward L. Xanders for Association of Southern
California Defense Counsel as Amicus Curiae on behalf of Objector and Appellant.
Keiter Appellate Law and Mitchell Keiter for Protecting Our Elders as Amicus Curiae on behalf of
Objector and Appellant.
Law Offices of Laura Hoffman King, Laura Hoffman King; Tardiff Law Offices, Neil S. Tardiff; and
Shaun P. Martin for Petitioners and Respondents.
Nelson & Fraenkel and Gretchen M. Nelson for Consumer Attorneys of California as Amicus Curiae on
behalf of Petitioners and Respondents.
Rita Himes for Legal Services for Prisoners with Children as Amicus Curiae.
Horovitz & Levy, Curt Cutting, Jeremy B. Rosen; U.S. Chamber Litigation Center and Janet Galeria for
Chamber of Commerce of the United States as Amicus Curiae.
Thomas F. Coleman; Fitzgerald Yap Kredito and Brook J. Changala for Spectrum Institute, TASH, and
Siblings Leadership Network as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gerald J. Miller
P.O. Box 543
Liberty Hill, TX 78642
(512) 778-4161
Shaun P. Martin
5998 Alcala Park, Warren Hall
San Diego, CA 92210
(619) 260-2347