Li v. Super. Ct. ( 2021 )

Filed 10/19/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
QUINN LI, C092584
Petitioner, (Super. Ct. No. 34202080003396)
v. ORDER MODIFYING
OPINION AND DENYING
THE SUPERIOR COURT REHEARING
OF SACRAMENTO COUNTY,
[NO CHANGE IN JUDGMENT]
Respondent;
MEDICAL BOARD OF CALIFORNIA,
Real Party in Interest.
THE COURT:
It is ordered that the opinion filed herein on September 30, 2021, be modified as
follows:
At the end of part IV (Petitioner Fails To Show A Different Outcome Would
Result) of the Discussion, add the following footnote:
In his petition for rehearing, petitioner asserts this court “erred as a matter of law
under the facts and scope of this appeal” in failing to remand the matter to the “trial court
to reexamine [his] request for reconsideration under [our analysis] on the heightened
standard of review in [section] 1094.5 proceedings.” Petitioner fails to acknowledge the
trial court’s order was not based solely on the Chamberlain standard of review. The trial
1
court also denied the reconsideration motion under section 1008, subdivisions (a) and (e).
Petitioner never addressed the propriety of that ground for the trial court’s denial of his
petition for reconsideration.
There is no change in the judgment. The petition for rehearing is denied.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Renner, J.
/s/
Krause, J.
2
Filed 9/30/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
QUINN LI, C092584
Petitioner, (Super. Ct. No. 34202080003396)
v.
THE SUPERIOR COURT
OF SACRAMENTO COUNTY,
Respondent;
MEDICAL BOARD OF CALIFORNIA,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Petition denied. James P. Arguelles,
Judge.
La Follette, Johnson, DeHaas, Fesler & Ames, Nicole D. Hendrickson; Rothschild
Wishek & Sands, Michael Rothschild; John D. Harwell; Max H. Hare, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Gloria L. Castro, Senior Assistant Attorney
General, Mary Cain-Simon, Supervising Deputy Attorney General, Rebecca D. Wagner,
Deputy Attorney General, for Real Party in Interest.
For almost 45 years, California trial courts have followed the rule laid down by
Chamberlain that a trial court exercising its independent judgment under Code of Civil
1
Procedure1 section 1094.5 must determine whether the administrative agency’s findings
are supported by the preponderance of the evidence, notwithstanding the clear and
convincing evidence standard of proof applied in the underlying administrative
proceeding. (Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d
362, 368-369 (Chamberlain); accord, Ettinger v. Board of Medical Quality Assurance
(1982) 135 Cal.App.3d 853, 858 (Ettinger).) That rule was born out of the appellate
court’s interpretation that the weight of the evidence phrase in subdivision (c) of
section 1094.5 is synonymous with the preponderance of the evidence standard of proof.
(Chamberlain, at p. 368; see § 1094.5, subd. (c) [“Where it is claimed that the findings
are not supported by the evidence, in cases in which the court is authorized by law to
exercise its independent judgment on the evidence, abuse of discretion is established if
the court determines that the findings are not supported by the weight of the evidence”],
italics added.) No appellate court has disagreed with Chamberlain or its progeny and our
Supreme Court has not, to our knowledge, reviewed or rendered a decision on the merits
of the statutory interpretation.
In this writ proceeding, petitioner Quinn Li challenges the continued vitality of the
Chamberlain rule, asserting our Supreme Court’s recent Conservatorship of O.B.
decision impliedly abrogated Chamberlain’s long-standing interpretation of
section 1094.5, subdivision (c). (Citing Conservatorship of O.B. (2020) 9 Cal.5th 989.)
In Conservatorship of O.B., our Supreme Court held an appellate court applying the
substantial evidence standard of review must account for the standard of proof required in
the underlying proceeding when determining whether a finding is supported by the
evidence. (Id. at pp. 995-996.) Thus, “[w]hen reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the appellate court is
1 All further section references are to the Code of Civil Procedure unless otherwise
specified.
2
whether the record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.” (Id. at p. 1011.)
Petitioner asserts the trial court acted in contravention of Conservatorship of O.B. when it
denied petitioner’s request to stay, during the pendency of his mandamus proceeding, the
adverse disciplinary decision by real party in interest the Medical Board of California
(the board) regarding petitioner’s medical license, because the trial court used the
preponderance of the evidence standard of proof rather than the clear and convincing
standard of proof in evaluating the merits of the stay request.
We disagree with petitioner’s implied abrogation argument but conclude, in sum,
that a trial court reviewing an administrative agency’s findings under the independent
judgment standard of review in section 1094.5 must, like under the substantial evidence
standard of review, account for the standard of proof required and applied in the
underlying proceeding. We recognize this conclusion breaks with over four decades of
established law. As we explain, however, after closely reexamining the statutory
construction employed by the Chamberlain and Ettinger courts, it is clear there is no
basis for the interpretation that the weight of the evidence phrase in section 1094.5 is
synonymous with preponderance of the evidence.
Despite the significance of our conclusion on this important question of law, we
deny petitioner’s petition for writ of mandate because he fails to raise any argument
demonstrating the correct application of the standard of review would have resulted in a
different outcome in the trial court. Prejudicial error must be proven; it is not presumed.
FACTUAL AND PROCEDURAL BACKGROUND
The board revoked petitioner’s medical license but stayed the revocation and
placed petitioner on probation for three years pursuant to terms and conditions (the
decision). Petitioner filed a petition for writ of mandate or, in the alternative,
administrative mandate and also filed an ex parte application for an order staying the
decision pursuant to section 1094.5, subdivision (h). In the stay application, petitioner
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argued, among other things, that the board is unlikely to prevail in the matter because the
decision “was taken in violation of the law, the wrong standard of proof was applied, the
correct standard was not met, the findings are not supported by the evidence, the penalty
exceeded the Board’s authority under the law as it is punishment, not protective of the
public, and the Board’s Decision was just plain wrong.”2 The trial court denied the stay
application.3
A few days after our Supreme Court filed Conservatorship of O.B., petitioner
asked the trial court to reconsider its denial of the stay application. Specifically,
petitioner asked the trial court to “apply the clear and convincing evidentiary standard to
the issue whether the [b]oard was unlikely to prevail on the merits, consistent with the
holding in [Conservatorship of] O.B.” The trial court denied the application for
reconsideration without explanation, citing only section 1008, subdivisions (a) and (e),
section 1094.5, subdivisions (c) and (h), and Chamberlain for “ ‘the standard of proof in
the original administrative proceedings is wholly irrelevant to the standard of proof
applicable to a review of such proceedings.’ ”4 (Citing Chamberlain, supra, 69
Cal.App.3d at p. 370.)
Petitioner filed a petition for writ of mandate in this court, requesting a stay of the
board’s decision and an order commanding the trial court to comply with “the standard of
review and burden of proof rules articulated in” Conservatorship of O.B. We stayed the
2 Section 1094.5, subdivision (h)(1), provides the trial court shall not stay the
operation of an administrative order or decision “unless the court is satisfied that the
public interest will not suffer and that the licensed hospital or agency is unlikely to
prevail ultimately on the merits.”
3 We subsequently denied petitioner’s petition for writ of mandate as to this ruling.
4 Based on the arguments presented in the parties’ briefs, the parties interpret the
order to mean the trial court found Conservatorship of O.B. resulted in no change in the
law pertinent to its consideration of petitioner’s stay request. We shall do the same.
4
board’s decision and all further proceedings in the trial court and issued an order to show
cause why relief should not be granted. The parties filed their respective briefs in
response to the order to show cause. We now consider the merits.
DISCUSSION
Section 1094.5 “provides the basic framework by which an aggrieved party to an
administrative proceeding may seek judicial review of any final order or decision
rendered by a state or local agency.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 137,
fn. omitted.) Subdivision (c) of the statute “provides for both an independent judgment
and a substantial evidence review of administrative decisions.” (Bixby, at p. 137, italics
omitted.) The trial court determines the applicable standard of review on a case-by-case
basis by considering whether the administrative decision substantially affects a
fundamental vested right. (Id. at p. 144.) “If the order or decision of the agency
substantially affects a fundamental vested right, the trial court, in determining under
section 1094.5 whether there has been an abuse of discretion because the findings are not
supported by the evidence, must exercise its independent judgment on the evidence and
find an abuse of discretion if the findings are not supported by the weight of the evidence.
If, on the other hand, the order or decision does not substantially affect a fundamental
vested right, the trial court’s inquiry will be limited to a determination of whether or not
the findings are supported by substantial evidence in the light of the whole record.”
(Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.)
I
The Independent Judgment Standard Of Review Applies
We first address petitioner’s confusing argument that Conservatorship of O.B.
mandates the trial court shall apply the substantial evidence standard of review rather
than the independent judgment standard of review in evaluating the merits of his
5
petition.5 The independent judgment standard of review applies to agency decisions
revoking or suspending a medical license. (Moran v. Board of Medical Examiners
(1948) 32 Cal.2d 301, 302, 308; Bixby v. Pierno, supra, 4 Cal.3d at pp. 139, 146.) Our
Supreme Court did not, in Conservatorship of O.B., discuss or change the standard of
review applicable to this proceeding.
II
The Application Of Conservatorship Of O.B.
To The Standards Of Review In Section 1094.5
In Conservatorship of O.B., our Supreme Court granted review “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.” (Conservatorship of
O.B., supra, 9 Cal.5th at p. 995.) The court explained “[t]here [wa]s a split of opinion
over how an appellate court should address a claim of insufficient evidence” when the
standard of proof in the underlying proceeding was clear and convincing evidence.
(Ibid.) In the view of some appellate courts, such a review required the court to analyze
“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.” (Id. at p. 1004.) Other
5 Petitioner also confusingly asserts Conservatorship of O.B. compels reviewing
courts in section 1094.5 cases “to determine whether the agency is unlikely to prevail
ultimately on the merits by determining whether [the agency’s] decision meets the ‘clear
and convincing’ test, rather than the substantial evidence test.” Petitioner confuses
standard of proof and standard of review, the differences of which are discussed post.
Petitioner further misapprehends the rule espoused in Conservatorship of O.B. Our
Supreme Court did not state that the standard of proof in the underlying proceeding
should be applied by a reviewing court “rather than the substantial evidence test.”
Rather, our Supreme Court concluded that a reviewing court applying the substantial
evidence standard of review to “evaluat[e] 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.” (Conservatorship of O.B.,
supra, 9 Cal.5th at p. 1005, italics added.)
6
appellate courts concluded “th[e] standard of proof has no bearing whatsoever on
appellate review for sufficiency of the evidence,” meaning the standard of review applies
without regard to the standard of proof at trial. (Id. at p. 1003.) Our Supreme Court
rejected the latter view, definitively ruling that, “[i]n 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.” (Id. at p. 1005.)
The substantial evidence standard of review addressed and discussed in
Conservatorship of O.B. pertained to an appellate court’s review of trial court decisions.
The Conservatorship of O.B. rule nonetheless unquestionably also applies to a trial
court’s substantial evidence review under section 1094.5. That is because “the superior
court, in an administrative mandamus proceeding, must apply the ‘substantial evidence’
rule in the same manner that that rule is applied by appellate courts in California in
reviewing decisions of trial courts.” (Beverly Hills Fed. S. & L. Assn. v. Superior Court
(1968) 259 Cal.App.2d 306, 317; accord, American Federation of Teachers v. San
Lorenzo etc. Sch. Dist. (1969) 276 Cal.App.2d 132, 135.) And, section 1094.5’s
substantial evidence review sometimes applies to underlying administrative proceedings
in which the standard of proof is clear and convincing evidence. (See, e.g., SASCO
Electric v. Fair Employment & Housing Com. (2009) 176 Cal.App.4th 532, 535, 546
[upholding the trial court’s conclusion “there [wa]s substantial evidence to support the
[administrative] finding that there was clear and convincing evidence of oppression and
malice on [employer’s] part”].)
Our Supreme Court did not, however, in Conservatorship of O.B. consider or
decide the scope of the independent judgment standard of review in section 1094.5 -- the
standard of review at issue in this proceeding. We thus disagree with petitioner’s
assertion that our Supreme Court impliedly overruled Chamberlain and intended to
7
require a trial court to account for the standard of proof in the underlying proceeding
when exercising its independent judgment under section 1094.5. (Marriage of Cornejo
(1996) 13 Cal.4th 381, 388 [“ ‘[i]t is axiomatic that cases are not authority for
propositions not considered’ ”].) That said, we recognize the nonsensical conflict created
by requiring a trial court to account for the clear and convincing evidence standard of
proof in exercising substantial evidence review but not in exercising its independent
judgment review.
First, independent judgment review, like substantial evidence review, applies to
underlying proceedings governed by both the clear and convincing evidence and the
preponderance of the evidence standards of proof. (See, e.g., Ettinger, supra, 135
Cal.App.3d at p. 856 [clear and convincing evidence standard of proof applied to a
medical license revocation proceeding; independent judgment standard of review applied
in trial court]; San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889, 1895, 1897
[preponderance of the evidence standard of proof applied to revocation of food
processor’s license; independent judgment standard of review applied in trial court].) As
our Supreme Court said, “ ‘[a]s a matter of logic, a finding that must be based on clear
and convincing evidence cannot be viewed . . . the same as one that may be sustained on
a mere preponderance.’ ” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)
“[K]eeping the clear and convincing standard in mind when reviewing for sufficiency of
the evidence helps ensure that an appropriate degree of [judicial] scrutiny attaches to
findings to which this standard applies.” (Id. at p. 1006.)
Second, substantial evidence review is more deferential to the fact finder than
independent judgment review. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 818 &
fn. 10 (Fukuda).) And, third, the purpose of independent judgment review is to protect
individual liberty. (Id. at p. 816, fn. 8 [independent judgment review addresses concerns
regarding the danger individuals face “ ‘from the dominance of government and other
institutions wielding governmental power’ ”]; Yakov v. Board of Medical Examiners
8
(1968) 68 Cal.2d 67, 75 [the purpose of independent judgment review is to surround
individual liberty rights “with a panoply of legal protection”].)
With the foregoing in mind, we took a closer look at the Chamberlain and Ettinger
courts’ statutory construction and interpretation of the weight of the evidence phrase with
respect to independent judgment review in section 1094.5. We did so because we are
convinced that, if the Chamberlain and Ettinger courts incorrectly concluded
section 1094.5 expressly ties a preponderance of the evidence standard of proof to the
independent judgment standard of review, logic and public policy support extending the
“account for the standard of proof” rule to the independent judgment standard of review.
Our research confirmed our suspicions; we find no basis for the Chamberlain and
Ettinger courts’ conclusion.
Before we delve into that analysis, however, we take a quick detour to address
Yazdi, a case recently decided by the Second District Court of Appeal and relied upon by
the board. (Yazdi v. Dental Bd. of California (2020) 57 Cal.App.5th 25.) In that case, the
Second District Court of Appeal considered the application of Conservatorship of O.B. to
the independent judgment standard of review under section 1094.5. The court concluded
Conservatorship of O.B. did not “overturn[] the standard to be applied by the trial court
in reviewing an administrative proceeding pursuant to a petition for writ of administrative
mandate under Code of Civil Procedure section 1094.5.” (Yazdi, at p. 33.) Two reasons
informed the court’s decision.
First, the court relied on the nature of the proceeding before our Supreme Court,
explaining “[t]he [Conservatorship of] O.B. case involved an appeal from a probate
proceeding, not an administrative mandate proceeding” and did not address “the decades
of case law . . . concerning the review to be made initially in the trial court and
subsequently by this court in the administrative mandate setting.” (Yazdi v. Dental Bd. of
California, supra, 57 Cal.App.5th at p. 33.) Second, the court stated a trial court’s
reweighing of the evidence under the independent judgment standard “runs contrary to
9
the language in the [Conservatorship of] O.B. decision . . . , stating that the trial court
should not reweigh the evidence.” (Yazdi, at pp. 33-34.) In sum, the Second District
Court of Appeal was “not persuaded that the [Conservatorship of] O.B. decision intended
to abolish the independent judgment standard in administrative mandate proceedings.”
(Yazdi, at p. 34.)
We agree with Yazdi that Conservatorship of O.B. did not consider nor decide the
scope of the independent judgment standard of review under section 1094.5. We
disagree, however, with the Yazdi court’s intimation that Conservatorship of O.B. does
not apply to any administrative mandate proceedings. (Yazdi v. Dental Bd. of California,
supra, 57 Cal.App.5th at p. 33.) The application of Conservatorship of O.B. is not
limited to probate proceedings. Our Supreme Court disapproved of nonprobate cases
insofar as they were inconsistent with the court’s rule (Conservatorship of O.B., supra, 9
Cal.5th at p. 1010, fn. 7) and the rule has subsequently been applied to issues outside the
probate context (see, e.g., King v. U.S. Bank National Assn. (2020) 53 Cal.App.5th 675,
711 [applied to review of punitive damages award]; Morgan v. J-M Manufacturing Co.,
Inc. (2021) 60 Cal.App.5th 1078, 1089-1090 [same]; In re Nathan E. (2021) 61
Cal.App.5th 114, 123 [applied to dispositional order removing a child]). As explained
ante, “the superior court, in an administrative mandamus proceeding, must apply the
‘substantial evidence’ rule in the same manner that that rule is applied by appellate courts
in California in reviewing decisions of trial courts.” (Beverly Hills Fed. S. & L. Assn. v.
Superior Court, supra, 259 Cal.App.2d at p. 317.) Thus, to the extent Yazdi stands for
the proposition that Conservatorship of O.B. does not apply to the substantial evidence
standard of review in administrative mandate proceedings, we disagree.
10
III
The Statutory Interpretation In Chamberlain And Ettinger Reexamined
A
The Statute’s Legislative History
In 1943, “the Legislature enacted and the Governor signed legislation directing the
Judicial Council to ‘make a thorough study of the subject . . . of review of decisions of
administrative boards, commissions and officers[,] . . . formulate a comprehensive and
detailed plan,’ and report its recommendations to the Legislature along with ‘drafts of
such legislative measures as may be calculated to carry out and effectuate the plan.’
[Citation.] The Judicial Council of California did so in its Tenth Biennial Report (1944)
(Report). [Citation.] The Report recommended, and the Legislature adopted with only
minor changes, three major pieces of legislation: a statewide Department of
Administrative Procedure [citations]; the Administrative Procedure Act [citations]; and
the statute that we consider in the case now before us, section 1094.5 [citations].”
(Fukuda, supra, 20 Cal.4th at pp. 814-815.)
The Report “ ‘is a most valuable aid in ascertaining the meaning of [section
1094.5]. . . . [T]he council drafted this language at the request of the Legislature, and in
this respect was a special legislative committee. As part of its special report containing
the proposed legislation [the Judicial Council] told the Legislature what it intended to
provide by the language used. In the absence of compelling language in the statute to the
contrary, it will be assumed that the Legislature adopted the proposed legislation with
the intent and meaning expressed by the council in its report.’ ” (Fukuda, supra, 20
Cal.4th at p. 816.)
Notably, the Judicial Council’s recommendations focused on “a portion of the
field of administrative adjudication which seemed most in need of improvement . . . [i.e.,]
the one occupied by the agencies engaged in licensing and disciplining the members of
the various professions and occupations.” Thus, the Judicial Council stated “[t]he
11
proposed legislation [wa]s designed to provide a solution for many of the difficulties and
injustices arising in the administrative licensing and disciplining of private citizens.” In
that vein, the Judicial Council noted its proposed language for section 1094.5 did “not
depart from the procedural pattern laid down by recent court decisions” and was
“modeled upon the statutory provisions suggested by other studies as well as upon the
case law of this State”. The Judicial Council explained the proposed statute provided
“for the cases in which the court has the power to exercise an independent judgment on
the evidence and also for the cases in which the court merely examines the record to
ascertain whether the decision is supported by substantial evidence.”
Section 1094.5 is a codification of the procedure devised for reviewing
adjudicatory decisions of administrative agencies as discussed in Drummey, Laisne,
Walker, Dare, and Sipper. (Fukuda, supra, 20 Cal.4th at pp. 811-814 [citing and
discussing in part IIA: Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75;
Laisne v. Cal. St. Bd. of Optometry (1942) 19 Cal.2d 831; Walker v. City of San Gabriel
(1942) 20 Cal.2d 879; Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790; Sipper v.
Urban (1943) 22 Cal.2d 138], 816 [the scope of review under section 1094.5 is the same
as that specified in the cases outlined “in part II.A”].) We briefly discuss Drummey given
its importance in the analysis that follows.
In Drummey, our Supreme Court addressed the scope of judicial review pertaining
to an administrative agency’s decision to cancel or suspend an existing license.
(Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d at p. 84.) The court held
“that in such a proceeding the court to which the application for mandate is made must
weigh the evidence, and exercise its independent judgment on the facts, as well as on the
12
law, if the complaining party is to be accorded his constitutional rights under the state and
federal Constitutions.”6 (Ibid.)
Our Supreme Court relied, in part, on the United States Supreme Court’s statement
that: “ ‘Legislative agencies, with varying qualifications, work in a field peculiarly
exposed to political demands. Some may be expert and impartial, others subservient. It
is not difficult for them to observe the requirements of law in giving a hearing and
receiving evidence. But to say that their findings of fact may be made conclusive where
constitutional rights of liberty and property are involved, although the evidence clearly
establishes that the findings are wrong and constitutional rights have been invaded, is to
place those rights at the mercy of administrative officials and seriously to impair the
security inherent in our judicial safeguards. That prospect, with our multiplication of
administrative agencies, is not one to be lightly regarded. It is said that we can retain
judicial authority to examine the weight of evidence when the question concerns the right
of personal liberty.’ ” (Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d at
p. 85, quoting St. Joseph Stock Yards Co. v. United States (1936) 298 U.S. 38, 52 [80
L.Ed. 1033, 1041-1042]; Drummey, at p. 86 [finding the analysis in St. Joseph Stock
Yards Co. to be sound].)
Our Supreme Court concluded that, in exercising its independent judgment, “[t]he
findings of the board come before the court with a strong presumption of their
correctness, and the burden rests on the complaining party to convince the court that the
board’s decision is contrary to the weight of the evidence.” (Drummey v. State Bd. of
Funeral Directors, supra, 13 Cal.2d at p. 85.) It explained that “[t]his procedure where
6 In Fukuda, our Supreme Court noted the reasoning of its plurality opinion in Tex-
Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335“casts doubt on the suggestion in Drummey . . . that the independent judgment standard of
judicial review is compelled by the due process clauses of the state and federal
Constitutions.” (Fukuda, 20 Cal.4th at p. 822, fn. 15.)
13
the courts in reviewing, in its broadest sense, the actions of administrative boards are
given the power to weigh the evidence is not unknown to our present law,” noting “State
Bar disciplinary cases in which the court has power to weigh the evidence offer [an]
illustration.” (Id. at p. 86.)
B
Chamberlain And Ettinger
The meaning of the weight of the evidence phrase as to independent judgment
review under section 1094.5 first came before the Second District Court of Appeal in
1977. (Chamberlain, supra, 69 Cal.App.3d at p. 367.) Chamberlain was the seminal
case defining the phrase as synonymous with preponderance of the evidence. (Id. at
p. 368.) The court explained the “apparent source of the [weight of the evidence]
language of both section 1094.5 and of our Supreme Court in Strumsky [v. San Diego
County Employees Assn., supra, 11 Cal.3d at p. 32] which cites it, is the opinion in
Drummey v. State Bd. of Funeral Directors[, supra,] 13 Cal.2d 75 . . . , in which the court
established the constitutional requirement of independent judgment review and applied it
to statewide agencies not vested with judicial powers.” (Chamberlain, at p. 368.)
Quoting from Drummey, the Chamberlain court explained that, when a trial court
considers a petition for writ of mandate to secure the restoration of a professional license,
the exercise of the trial court’s independent judgment on the facts “ ‘does not mean that
the preliminary work performed by the administrative board in sifting the evidence and in
making its findings is wasted effort. [Rather,] in weighing the evidence the courts can
and should be assisted by the findings of the board. The findings of the board come
before the court with a strong presumption of their correctness, and the burden rests on
the complaining party to convince the court that the board’s decision is contrary to the
weight of the evidence.’ ” (Chamberlain, supra, 69 Cal.App.3d at p. 368, quoting
Drummey v. State Bd. of Funeral Directors, supra, 13 Cal.2d at pp. 84-85.)
14
The Chamberlain court then said: “The purpose for which a court normally
weighs the evidence is to determine which way it preponderates on a given
issue. Evidence Code section 115 provides in pertinent part: ‘Except as otherwise
provided by law, the burden of proof requires proof by a preponderance of the evidence.’
Thus, an unexplained statement that a reviewing court shall weigh the evidence is a
statement that it shall determine whether the evidence preponderates in favor of, or
against, the administrative decision under review. Such interpretation is also required by
the long standing practice of courts in this state to define ‘preponderance of the evidence’
in terms of the weight of the evidence.” (Chamberlain, supra, 69 Cal.App.3d at pp. 368-
369.) The court relied on two California Supreme Court opinions for the foregoing
proposition.
As to the first case, the Chamberlain court noted our Supreme Court “defined
‘preponderance of the evidence’ as follows: ‘The term simply means what it says, viz.,
that the evidence on one side outweighs, preponderates over, is more than, the evidence
on the other side, not necessarily in number of witnesses or quantity, but in its effect on
those to whom it is addressed.’ ” (Chamberlain, supra, 69 Cal.App.3d at p. 369, quoting
People v. Miller (1916) 171 Cal. 649, 652-653.) As to the second case, the Chamberlain
court explained, our Supreme Court “reject[ed] a claim that fraud was required to be
proved by clear and convincing evidence,” reasoning: “ ‘So in civil cases tried without a
jury where fraud is an issue, it is for the trial court to determine the weight of the
evidence, and while it cannot find fraud upon a mere suspicion, yet if there is any
substantial evidence tending to prove fraud, it is for the trial court to determine whether
such evidence outweighs or preponderates over that adduced in opposition thereto, and
when the trial court has found that such evidence does so preponderate, its decision
thereon is final, and an appellate court has no right or authority to disturb such a finding,
even though the appellate court may be of a contrary opinion as to the weight of such
evidence . . . .’ ” (Chamberlain, at p. 369, quoting Noll v. Baida (1927) 202 Cal. 98,
15
101.) In the Chamberlain court’s view, “[t]he phrase ‘determine the weight of the
evidence’ in Noll is virtually identical with that contained in Code of Civil Procedure
section 1094.5” and thus the court concluded a trial court must “examine the evidence
favoring the administrative determination . . . ‘to determine whether such evidence
outweighs or preponderates over that adduced in opposition thereto . . . .’ ”
(Chamberlain, at pp. 369-370, quoting Noll, at p. 101.)
Next, the Chamberlain court considered the petitioner’s argument that the trial
court had to take into consideration the higher standard of proof required in the
underlying proceeding, relying “upon the rule relating to charges of unprofessional
conduct on the part of attorneys.” (Chamberlain, supra, 69 Cal.App.3d at p. 370.) The
court pointed to an apparent conflict between California Supreme Court cases in that
regard7 but concluded, “[i]n any event, the standard of proof in the original
administrative proceedings is wholly irrelevant to the standard of proof applicable to a
review of such proceedings.” (Chamberlain, at p. 370.) The court said Johnstone
supported its position because the court “based its reversal of the trial court judgment
denying a writ of mandate upon the conclusion there was no ‘substantial evidence to
support the order of the city council,’ thereby applying upon review a standard of proof
even lower than that of ‘preponderance of the evidence.’ ” (Chamberlain, at p. 370,
citing Johnstone v. City of Daly City (1958) 156 Cal.App.2d 506.)
The Chamberlain court next analogized, in part, to review of factual
determinations in criminal trials, explaining that, although “the standard of proof in the
initial proceeding is proof beyond a reasonable doubt,” “on review of such findings, the
‘substantial evidence’ test is applied.” (Chamberlain, supra, 69 Cal.App.3d at p. 370.)
7 Although immaterial to this appeal, we note the apparent conflict identified in
Chamberlain was resolved in Ettinger, in which the court contrasted the vested rights
regarding the revocation and suspension of professional licenses with the “mere
termination of state employment.” (Ettinger, supra, 135 Cal.App.3d at pp. 857-858.)
16
This long-standing rule, as the Chamberlain court referred to it, was purportedly
reaffirmed in Kunkin, which provided: “ ‘The substantial evidence rule has received
extended discussion and express reaffirmation in several of our recent
cases. In People v. Mosher (1969) 1 Cal.3d 379, 395 . . . , we observed that “this 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. . . . If the circumstances reasonably justify the trial court’s findings, an
appellate court cannot reverse merely because the circumstances might also be
reasonably reconciled with a contrary finding. . . . The test on appeal becomes
whether substantial evidence supports the conclusion of the trier of fact, not whether the
evidence proves guilt beyond a reasonable doubt.” ’ ” (Chamberlain, at pp. 370-371,
quoting People v. Kunkin (1973) 9 Cal.3d 245, 250.)
The Chamberlain court concluded “the standard of proof on review of factual
determinations of a tribunal is not a function of the standard of proof in the original
proceedings before such tribunal. The standard of proof on review is, instead, governed
by the degree to which it is appropriate to presume correctness of such determinations.
The holding in Strumsky that an ‘independent judgment’ review is appropriate in the case
of local administrative agency findings affecting vested fundamental rights is a
determination that, as stated in Drummey, such findings ‘come before the court with a
strong presumption of their correctness . . . .’ [Citation.] Though this presumption does
not invoke the substantial evidence test, it does require the party challenging such
findings to ‘convince the court that the board’s decision is contrary to the weight of the
evidence.’ ” (Chamberlain, supra, 69 Cal.App.3d at p. 371.)
Approximately five years later, the Second District Court of Appeal reaffirmed
Chamberlain’s interpretation of section 1094.5, subdivision (c). In Ettinger, the court
addressed two issues. First, the court held the clear and convincing standard of proof
applies to administrative proceedings to revoke or suspend a medical license. (Ettinger,
17
supra, 135 Cal.App.3d at p. 856.) The court explained, in important part as further
discussed post, that the heightened standard of review applied in disciplinary proceedings
involving other professional licenses, such as real estate brokers and attorneys. (Id. at pp.
855-856.) The court then specifically addressed attorney disciplinary proceedings, as
follows: “It is true that State Bar proceedings, although administrative, have been held to
be of a nature all their own, neither civil nor criminal. [Citations.] However, when one
compares the underlying policy considerations for that distinction with the policy
considerations present in the instant case, substantial similarities can be seen.
“ ‘ “The State Bar Act is designed to provide a procedure whereby those attorneys
at law who prove recreant to their trust may be removed from the ranks of the profession.
The public, as well as the legal profession and the courts must be protected from those
who do not measure up to their responsibilities. . . . The purpose of disbarment
proceedings is not to punish the individual but to determine whether the attorney should
continue in that capacity.” ’ [Citation.]
“The purpose of an administrative proceeding concerning the revocation or
suspension of a license is not to punish the individual; the purpose is to protect the public
from dishonest, immoral, disreputable or incompetent practitioners. [Citations.]
“Since it is apparent that the underlying purpose of disciplining both attorneys and
physicians is protection of the public, it would be anomalous to require a higher degree of
proof in disciplinary hearings involving attorneys or real estate agents than in hearings
involving physicians.” (Ettinger, supra, 135 Cal.App.3d at p. 856.)
The second issue the Ettinger court addressed was whether the clear and
convincing standard of proof affected the independent judgment standard of review under
section 1094.5. (Ettinger, supra, 135 Cal.App.3d at p. 858.) It concluded it did not. The
court said “[the weight of the evidence] standard is considered to be synonymous with the
preponderance of the evidence standard.” (Ibid., citing People v. Miller, supra, 171 Cal.
at p. 654 & Lawyer v. Los Angeles Pacific Co. (1913) 23 Cal.App. 543, 546.) The court
18
further agreed with Chamberlain that, “the standard of proof used in the original
proceeding is completely irrelevant.” (Ettinger, at p. 858.)
Our research revealed no subsequent appellate history for Chamberlain or
Ettinger. In other words, our Supreme Court has not had the opportunity to consider the
propriety of the conclusions espoused in those cases. Our Supreme Court has, however,
cited favorably to both cases for reasons other than the section 1094.5, subdivision (c)
interpretation. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789
[citing Ettinger for its application of the clear and convincing standard of proof in
professional license revocation proceedings]; Kapelus v. State Bar (1987) 44 Cal.3d 179,
184, fn. 1 [same]; Fukuda, supra, 20 Cal.4th at p. 817 [citing Chamberlain for “quoting
Drummey’s ‘strong presumption of . . . correctness’ and burden of proof qualifications on
independent judgment review”].)
C
Weight Of The Evidence Is Not Always Synonymous With
Preponderance Of The Evidence
The pertinent question in Chamberlain and Ettinger was, and is before us today,
what meaning the Legislature intended to attach to the weight of the evidence phrase in
section 1094.5. “The rules governing statutory construction are well settled. We begin
with the fundamental premise that the objective of statutory interpretation is to ascertain
and effectuate legislative intent.” (People v. Flores (2003) 30 Cal.4th 1059, 1063.) “In
interpreting a statute where the language is clear, courts must follow its plain meaning.
[Citation.] However, if the statutory language permits more than one reasonable
interpretation, courts may consider various extrinsic aids, including the purpose of the
statute, the evils to be remedied, the legislative history, public policy, and the statutory
scheme encompassing the statute. [Citation.] In the end, we ‘ “must select the
construction that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute, and avoid an
19
interpretation that would lead to absurd consequences.” ’ ” (Torres v. Parkhouse Tire
Service, Inc. (2001) 26 Cal.4th 995, 1003.)
The Chamberlain and Ettinger courts essentially relied on two principles for the
conclusion that the weight of the evidence phrase in section 1094.5 is synonymous with
preponderance of the evidence. The first was that the interpretation was consistent with
Evidence Code section 115 and established common law; the second was that, because a
trial court reviews findings made in an administrative proceeding, the standard of proof
used in the original proceeding is irrelevant. Neither principle supports the conclusion
reached.
First, the Chamberlain court’s reliance on Evidence Code section 115 presents an
obvious timing issue. The court invoked the portion of the statute providing that
“ ‘[e]xcept as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence’ ” to reach the conclusion that “an unexplained statement
that a reviewing court shall weigh the evidence is a statement that it shall determine
whether the evidence preponderates in favor of, or against, the administrative decision
under review.” (Chamberlain, supra, 69 Cal.App.3d at pp. 368-369.) But Evidence
Code section 115 was enacted 20 years after the Legislature enacted section 1094.5. The
Legislature thus could not have contemplated Chamberlain’s proposed fusion of the two
statutes when it enacted section 1094.5.
It is further informative that, from around the turn of the prior century up to at
least 1961, former section 2061, occasion 5, provided “[t]hat in civil cases the affirmative
of the issue must be proved, and when the evidence is contradictory the decision must be
made according to the preponderance of evidence; that in criminal cases guilt must be
established beyond reasonable doubt.” The statute was repealed when Evidence Code
section 115 was enacted. (Stats. 1965, ch. 299, § 127.) Nothing in section 2061 provided
“[e]xcept as otherwise provided by law, the burden of proof requires proof by a
preponderance of the evidence” -- the portion of Evidence Code section 115 relied upon
20
by the Chamberlain court. Moreover, section 2061 was frequently described as
enumerated matters affecting the weight of evidence (People v. Moran (1904) 144 Cal.
48, 63) or weight of the evidence rules (see, e.g., People v. Grill (1907) 151 Cal. 592,
597, overruled on another ground in People v. Henderson (1963) 60 Cal.2d 482; People
v. King (1951) 103 Cal.App.2d 122, 128). Thus, the weight of the evidence phrase was
used in common law to reference both preponderance of the evidence and guilt beyond a
reasonable doubt before and around the time section 1094.5 was enacted.
Second, the cases relied upon by the Chamberlain and Ettinger courts do not
reveal a legislative intent to define weight of the evidence as preponderance of the
evidence in mandamus proceedings. The Chamberlain court relied on Miller and Noll.
(Chamberlain, supra, 69 Cal.App.3d at p. 369, citing People v. Miller, supra, 171 Cal. at
pp. 652-653 & Noll v. Baida, supra, 202 Cal. at p. 101.) The Ettinger court relied on
Miller and Lawyer. (Ettinger, supra, 135 Cal.App.3d at p. 858, citing People v. Miller,
supra, 171 Cal. at p. 654 & Lawyer v. Los Angeles Pacific Co., supra, 23 Cal.App. at
p. 546.) Notably, Miller and Lawyer, in turn, relied on Murphy. (People v. Miller, supra,
171 Cal. at p. 654, quoting Murphy v. Waterhouse (1896) 113 Cal. 467, 473; Lawyer v.
Los Angeles Pacific Co., supra, 23 Cal.App. at p. 546, citing Murphy, at p. 473.)
Our Supreme Court, in Miller, considered whether the trial court’s insanity
instruction as to the meaning of preponderance of the evidence was erroneous. (People v.
Miller, supra, 171 Cal. at pp. 650-651.) It concluded the trial court erred because the
instruction given “was substantially the same as that of proof beyond a reasonable
doubt.” (Id. at p. 651.) On pages 652 and 653 of Miller, the pages upon which the
Chamberlain court relied (Chamberlain, supra, 69 Cal.App.3d at p. 369), our Supreme
Court explained the meaning of preponderance of the evidence, citing and quoting
several cases. (Miller, at pp. 652-653.) The court said preponderance of the evidence
“simply means what it says, viz., that the evidence on one side outweighs, preponderates
over, is more than, the evidence on the other side, not necessarily in number of witnesses
21
or quantity, but in its effect on those to whom it is addressed.” (Id. at p. 652.) The cases
cited and discussed by the court addressed preponderance of the evidence in terms of
having greater weight than or preponderating over other evidence. (Id. at p. 653.)
Nothing on pages 652 or 653 equates the weight of the evidence phrase with
preponderance of the evidence, nor is there any discussion as to the meaning of that
phrase.
A different page in Miller caught the eye of the Ettinger court. Ettinger cited page
654 in Miller (Ettinger, supra, 135 Cal.App.3d at p. 858), which in the absence of any
analysis or discussion was presumably intended to direct the reader to the Murphy quote
that “ ‘the weight of evidence or preponderance of probability is sufficient to establish a
fact in a civil case.’ ” (People v. Miller, supra, 171 Cal. at p. 654, quoting Murphy v.
Waterhouse, supra, 113 Cal. at p. 473.) Lawyer, the second case relied upon by the
Ettinger court (Ettinger, at p. 858), also relied on the Murphy quote for its conclusion that
“the use of the term ‘preponderance of probability,’ as synonymous with the weight of
evidence, has received the sanction of the supreme court of this state.” (Lawyer v. Los
Angeles Pacific Co., supra, 23 Cal.App. at p. 546.) And, in Noll, relied upon in
Chamberlain (Chamberlain, supra, 69 Cal.App.3d at pp. 369-370), the court rejected the
assertion that civil fraud had to be proven by clear and convincing evidence and, “in
doing so reaffirmed the standard of proof by a preponderance of the evidence” (Liodas v.
Sahadi (1977) 19 Cal.3d 278, 289, discussing Noll v. Baida, supra, 202 Cal. at p. 101).
Two glaring issues arise from the conclusion that Miller, Murphy, Noll, and
Lawyer unequivocally render the weight of the evidence phrase in section 1094.5
synonymous with the preponderance of the evidence standard of proof. First, the cases
were all civil actions that considered the phrase within that context. Even if our Supreme
Court sanctioned the use of weight of the evidence as a term of art in civil actions, it does
not inform whether the Legislature intended the phrase to mean preponderance of the
evidence in section 1094.5, a statute governing special proceedings of a civil nature and
22
not civil actions. (Binyon v. State of California (1993) 17 Cal.App.4th 952, 954-955
[“ ‘[t]he judicial remedy of mandamus is not a civil action, but a special proceeding of a
civil nature, which is available for specified purposes and for which the code provides a
separate procedure’ ”]; Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115 [“[a]n
application for a writ of administrative mandamus is a ‘special proceeding of a civil
nature’ ”].) In fact, the Legislature referred to applications for a writ of mandate as
special proceedings of a civil nature well before the enactment of section 1094.5. (See,
e.g., Jones v. Board of Police Commissioners (1903) 141 Cal. 96, 98.)
Second, while a court may, in construing a term of art, consider the history of a
term’s legal interpretation as a guide to the Legislature’s intended meaning rather than its
dictionary definition (Irvin v. Contra Costa County Employees’ Retirement Assn. (2017)
13 Cal.App.5th 162, 174), the Chamberlain and Ettinger courts failed to recognize that
our Supreme Court did not uniformly employ the weight of the evidence phrase as a
synonym for preponderance of the evidence. Indeed, prior to the enactment of
section 1094.5, our Supreme Court and appellate courts sometimes used the phrase to
generally refer to the standard of proof in the underlying proceeding or the degree to
which the fact finder finds the evidence probative. (See, e.g., People v. Travers (1891)
88 Cal. 233, 237 [addressing “the difference in the weight of evidence required in civil
and criminal cases”]; People v. Bushton (1889) 80 Cal. 160, 164 [“[t]he well-settled rule
that a defendant shall not be convicted unless the evidence proves his guilt beyond a
reasonable doubt applies to the whole and every material part of the case . . . [¶] . . . [and]
[a]ny other rule as to the weight of the evidence makes one measure applicable to one
part of the case and a different one to another part, and leads to confusion ]; People v.
Barker (1938) 29 Cal.App.2d Supp. 766, 771 [“ ‘A judgment in a civil action is not
admissible in a subsequent criminal prosecution, although exactly the same questions are
in dispute in both cases, for the reason that the parties are not the same, and different
rules as to the weight of the evidence prevail’ ”]; Wilcoxson v. Burton (1865) 27 Cal. 228,
23
232 [“We have examined the testimony contained in the voluminous record filed in this
action with patient attention; and have furthermore availed ourselves of the thorough and
exhaustive discussion of counsel upon the weight of the evidence and the conclusions
properly to be drawn from it, and we are satisfied not only that the case is one where the
evidence is in conflict, but one in which the court below did not so far mistake the
relative weight of the opposing proofs as to justify us in going behind the special
findings”]; Howland v. Oakland C.S.R. Co. (1895) 110 Cal. 513, 521-522 [objection as to
the sufficiency of a witness’s knowledge “goes more to the weight of the evidence than
its admissibility”]; People v. Sanders (1896) 114 Cal. 216, 235 [“the weight of the
evidence . . . was exclusively for the jury” such that “how much or how little importance
should be attached to it was for the jury alone to say”].)
Even more pertinent is the fact that our Supreme Court, prior to the enactment of
section 1094.5, used the weight of the evidence phrase in attorney disciplinary
proceedings when it applied its independent judgment to determine whether the findings
were supported by clear and convincing evidence. Our Supreme Court explained it
reviewed the entire record “to ascertain the weight of the evidence and whether . . . any
charge has been proven against petitioner which merits his disbarment” (Narlian v. State
Bar of California (1943) 21 Cal.2d 876, 880-881, italics added) by clear and convincing
evidence (Hildebrand v. State Bar of California (1941) 18 Cal.2d 816, 828). (See also
Furman v. State Bar of California (1938) 12 Cal.2d 212, 214, 229 [the court “can and
always does pass upon the weight of the evidence” in attorney discipline cases to
determine if guilt is established by “ ‘convincing proof to a reasonable certainty’ ”].)
That the weight of the evidence phrase was used by our Supreme Court in attorney
disciplinary proceedings when taking into account the clear and convincing standard of
proof is significant because Drummey, the source of the weight of the evidence language
in section 1094.5 (as noted by Chamberlain, supra, 69 Cal.App.3d at p. 368), relied on
our Supreme Court’s standard of review in attorney disciplinary cases as an illustration of
24
how a reviewing court exercises its independent judgment when “given the power to
weigh the evidence.” (Drummey, supra, 13 Cal.2d at p. 86.) As the Ettinger court noted,
the public policy considerations in attorney disciplinary proceedings are the same as in
other licensing disciplinary proceedings. (Ettinger, supra, 135 Cal.App.3d at p. 856.)
Notably, our Supreme Court continues to use the weight of the evidence phrase in
a manner that accounts for the clear and convincing evidence standard of proof in
attorney disciplinary proceedings. In 1991, our Supreme Court adopted then California
Rules of Court, rule 954(a)(4) (now California Rules of Court, rule 9.16) which provides
the court will order review of a decision of the State Bar Court recommending disbarment
or suspension from practice when, among other grounds, it appears the decision is not
supported “by the weight of the evidence.” In In re Menna, a case decided approximately
four years later, the court reversed a determination that an applicant had the requisite
good moral character to be certified for admission. (In re Menna (1995) 11 Cal.4th 975,
979.) The court explained “[b]oth the hearing department and the review panel of the
State Bar Court evaluated the evidence of rehabilitation under a heightened ‘clear and
convincing’ standard” and the question was “whether the evidence support[ed] the State
Bar Court’s determination he met that standard.” (Id. at pp. 986-987.) After reviewing
the evidence, the court concluded it was not persuaded the applicant had “demonstrated
his overall rehabilitation by clear and convincing evidence.” (Id. at p. 988.) Thus, the
State Bar Court’s “determination [wa]s not supported by the weight of the evidence; nor
[wa]s it appropriate in light of the record as a whole.” (Id. at p. 979.)
In an analogous proceeding involving judicial discipline, our Supreme Court held
it would independently evaluate the record evidence in reviewing a recommendation by
the Commission on Judicial Qualifications to remove a sitting judge from the bench.
(Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 276.) In that
case, the court “independently f[ou]nd upon clear and convincing evidence in accord with
the findings of the Commission” that, subject to some qualifications, the judge’s conduct
25
constituted willful misconduct in office and conduct prejudicial to the administration of
justice that brings the judicial office into disrepute. (Id. at p. 281.)
The point is that, although the Chamberlain and Ettinger courts seemingly relied
on the dictionary definition of the weight of the evidence phrase laid out in California
Words, Phrases, and Maxims,8 the dictionary formulated the definition without taking
into account the inconsistencies in the common law noted ante with regard to the use of
the phrase in other proceedings.9 The phrase weight of the evidence simply has not been
uniformly used as a synonym for preponderance of the evidence in California common
law. Thus, as our Supreme Court noted in Conservatorship of O.B., “even if we were to
regard [California Supreme Court] case law as informing prevailing expectations among
legislators, and these expectations as reflective of legislative intent” in interpreting
section 1094.5, we could not reasonably conclude the Legislature intended the phrase to
8 California Words, Phrases, and Maxims states our Supreme Court in Murphy and
Miller said “ ‘weight of evidence’ or ‘preponderance of probability’ is sufficient to
establish a fact in a civil case.” (California Words, Phrases, and Maxims (1960) p. 555,
citing Murphy v. Waterhouse, supra, 113 Cal. 467 & People v. Miller, supra, 171 Cal. at
p. 654.) It further cites Lawyer for the proposition that “[t]he use of the term
‘preponderance of probability,’ as synonymous with ‘weight of evidence,’ has received
the sanction of the supreme court of this state, and therefore, an instruction that the
weight of evidence, or preponderance of probability, is sufficient to establish a fact in a
civil case, was not error.” (California Words, Phrases, and Maxims, at p. 555, citing
Lawyer v. Los Angeles Pacific Co., supra, 23 Cal.App. at p. 546.)
9 Notably, in 1930 and 1948, around the time section 1094.5 was enacted, the Law
Dictionary with Pronunciations by James A. Ballentine defined “weight of evidence” as
“not a question of mathematics, but depends on its effect in inducing belief. One witness
may be contradicted by several and yet his testimony may outweigh all of theirs. The
question is not on which side are the witnesses more numerous, but what is to be
believed.” (Ballentine, Law Dict. with Pronunciations (1930) p. 1360; Ballentine, Law
Dict. with Pronunciations (2d ed. 1948) p. 1360.) The dictionary thus ascribed to
“weight” as applied to evidence a meaning of degree of probative value -- a meaning
sanctioned by our Supreme Court as recently as last year. (People v. Turner (2020) 10
Cal.5th 786, 805 [“[w]eight” in relation to evidence “describes the degree to which the
jury [or fact finder] finds the evidence probative”].)
26
mean preponderance of the evidence by implicitly incorporating only the cases identified
in Chamberlain and Ettinger. (Conservatorship of O.B., supra, 9 Cal.5th at p. 1011
[interpreting Probate Code section 1801, Legislature not “regarded as having implicitly
incorporated th[e] judicially created rule [that the standard of proof disappears on appeal]
within the statute” because the court’s “precedent did not consistently articulate th[at]
view”].)
The Chamberlain court’s discussion of the Johnstone case also reveals a
fundamental misapprehension of the concepts of burden of proof, standard of proof, and
standard of review, which are distinct concepts. The substantial evidence standard of
review is not “a standard of proof even lower than that of ‘preponderance of the
evidence,’ ” as the Chamberlain court proclaimed. (Chamberlain, supra, 69 Cal.App.3d
at p. 370.)
The burden of proof is a party’s duty or obligation “ ‘to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court.’ ”
(Conservatorship of O.B., supra, 9 Cal.5th at p. 997, quoting Evid. Code, § 115.) The
standard of proof refers to the requisite degree or level of proof demanded to prove a
specific allegation in a given case -- i.e., preponderance of the evidence, clear and
convincing proof, or proof beyond a reasonable doubt. (Conservatorship of O.B., at pp.
997-998 [“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
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’ ”].)
A standard of review, in contrast, defines a reviewing court’s scope of review.
(Peplinski v. Fobe’s Roofing (1995) 193 Wis.2d 6, 13, fn. 1 [531 N.W.2d 597, 599].) It
prescribes the degree of deference given by the reviewing court to the findings reached in
a decision under review, providing “ ‘the power of the lens’ through which the
27
[reviewing] court looks at the issue in a particular case.” (Commonwealth v. Ratsamy
(2007) 594 Pa. 176, 180 [934 A.2d 1233, 1235]; Estate of Ekic v. Geico Indem. Co.
(2018) 163 Idaho 895, 897 [422 P.3d 1101, 1103].) “ ‘It is widely agreed that the
primary function of a standard of review is to apportion power and, consequently,
responsibility between trial and appellate courts for determining an issue or a class of
issues. . . . In determining the appropriateness of a particular allocation of responsibility
for deciding an issue or a class of issues, account should be taken of the relative
capabilities of each level of the court system to take evidence and make findings of fact
in the face of conflicting evidence, on the one hand, and to set binding jurisdiction-wide
policy, on the other.’ ” (Tetra Tech EC, Inc. v. Dept. of Revenue (2018) 382 Wis.2d 496,
530, fn. 23 [914 N.W.2d 21, 38], quoting Utah v. Thurman (Utah 1993) 846 P.2d 1256,
1265-1266.) Substantial evidence and independent judgment are standards of review.
(See Fukuda, supra, 20 Cal.4th at p. 824.)
In Johnstone, the appellate court considered whether substantial evidence
supported a city council’s adverse employment decision. (Johnstone v. City of Daly City,
supra, 156 Cal.App.2d at pp. 507, 515.) The court said: “ ‘It may be conceded that in
disciplinary administrative proceedings the burden of proof is upon the party asserting the
affirmative [citation], and that guilt must be established to a reasonable certainty
[citations] and cannot be based on surmise or conjecture, suspicion or theoretical
conclusions, or uncorroborated hearsay.’ ” (Id. at pp. 515-516.) The court concluded
“the record show[ed] that appellant was discharged from his position on charges that
were based on suspicion, conjecture and hearsay, and not on substantial evidence
necessary to warrant his discharge. Suspicion, conjecture and hearsay, even though
strong, are not sufficient under our law to constitute evidence and warrant a discharge
from a civil service position.” (Id. at p. 516.) Nothing in Johnstone supports the blanket
assertion that “the standard of proof in the original administrative proceedings is wholly
irrelevant to the standard of proof applicable to a review of such proceedings.”
28
(Chamberlain, supra, 69 Cal.App.3d at p. 370.) Moreover, nothing in Johnstone
indicates the court applied “a standard of proof even lower than that of ‘preponderance of
the evidence.’ ” (Chamberlain, at p. 370.) The Johnstone court merely concluded the
city council failed to identify probative evidence supporting its determination.
The criminal case relied upon by the Chamberlain court also does not support the
assertion that the standard of proof in the original proceeding is irrelevant in the review
of such a proceeding. True, as noted in Chamberlain, supra, 69 Cal.App.3d at pages 370
through 371, our Supreme Court said “ ‘[t]he test on appeal becomes whether substantial
evidence supports the conclusion of the trier of fact, not whether the evidence proves
guilt beyond a reasonable doubt.’ ” (People v. Kunkin, supra, 9 Cal.3d at p. 250.) But
what Chamberlain missed is the next paragraph, in which our Supreme Court further
said: “In People v. Reilly (1970) 3 Cal.3d 421, 425 . . . , we emphasized that
reasonableness was the ultimate standard under the substantial evidence rule. ‘The
appellate court must determine whether a reasonable trier of fact could have found the
prosecution sustained its burden of proving the defendant guilty beyond a reasonable
doubt.’ ” (Kunkin, at p. 250, italics added.) Thus, in applying the substantial evidence
standard of review in criminal proceedings, the standard of proof does not disappear upon
review. Although the reviewing court does not under the substantial evidence standard of
review weigh the evidence to determine whether the evidence proves guilt beyond a
reasonable doubt, it determines whether a reasonable trier of fact could have come to that
conclusion. As our Supreme Court reiterated in Conservatorship of O.B., “the firmly
established rule in criminal cases [is] 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.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1007.)
Nothing in the legislative history indicates that the Legislature intended to build a
preponderance of the evidence standard of proof into the independent judgment standard
of review requiring the trial court to disregard the standard of proof in the underlying
29
administrative proceeding. By prescribing that the trial court shall review “the weight of
the evidence,” the Legislature did not prescribe by what weight the evidence shall be
reviewed. Logic and the public policy considerations discussed in Conservatorship of
O.B. lead to the conclusion that the trial court must account for the standard of proof in
the underlying proceeding when exercising its independent judgment under
section 1094.5.
We find no merit in the board’s argument that requiring the trial court to account
for the clear and convincing standard of proof in the underlying administrative
proceeding when applying independent judgment review to the findings would conflict
with the principles of deference or presumptive correctness laid down in Fukuda. “In
exercising its independent judgment, a trial court must afford a strong presumption of
correctness concerning the administrative findings, and the party challenging the
administrative decision bears the burden of convincing the court that the administrative
findings are contrary to the weight of the evidence.” (Fukuda, supra, 20 Cal.4th at
p. 817.) Further, “ ‘considerable weight should be given to the findings of experienced
administrative bodies made after a full and formal hearing, especially in cases involving
technical and scientific evidence.’ ” (Id. at p. 812.)
Under our analysis, all that would be required is for the trial court to apply the
principles of deference and presumptive correctness in the context of whether the findings
are supported by clear and convincing evidence, rather than a mere preponderance of the
evidence. We can discern no conflict with Fukuda. It is also notable that the
presumption of correctness is a starting point “but it is only a presumption, and may be
overcome. Because the trial court ultimately must exercise its own independent
judgment, that court is free to substitute its own findings after first giving due respect to
the agency’s findings. This approach to the trial court’s exercise of independent
judgment long has been understood . . . .” (Fukuda, supra, 20 Cal.4th at pp. 818-819.)
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In sum, we disagree with the conclusion reached in Chamberlain and Ettinger and
believe a trial court must account for the standard of proof in the underlying
administrative proceeding when exercising its independent judgment in reviewing the
sufficiency of the evidence supporting the administrative agency’s findings.
IV
Petitioner Fails To Show A Different Outcome Would Result
Although we agree with petitioner that a trial court should account for the clear
and convincing evidence standard of proof when exercising its independent judgment
under section 1094.5, we conclude no remedy is available to petitioner for failing to
demonstrate, in his petition, that he would have received a different outcome had the trial
court done so. (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 20 [“Reversible
error requires demonstration of prejudice arising from the reasonable probability the
party ‘would have obtained a better outcome’ in the absence of the error’ ”].) Petitioner’s
attempt to remedy the deficiency in his reply brief is to no avail. We do not consider
arguments raised for the first time in a reply brief. (Sourcecorp, Inc. v. Shill (2012) 206
Cal.App.4th 1054, 1061, fn. 7; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
DISPOSITION
The petition for writ of mandate is denied. The September 18, 2020, stay of the
board’s decision and the proceedings in the superior court is vacated.
/s/
Robie, Acting P.J.
We concur:
/s/
Renner, J.
/s/
Krause, J.
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