A mixed standard of review may apply on appeal depending on your circumstances, the order appealed and the issues presented. If the trial court judge makes factual conclusions to determine if an ultimate fact is met under the application of a rule of law, a mixed question of law and fact exists.

Also, a mixed standard of review applies where historical facts are established and the applicable law to be applied to those facts is undisputed, but, the question is, are the facts sufficient to meet the legal standard so as to constitute the ultimate fact under the applicable rule of law? When the law is applied to those factual circumstances, is the ultimate legal conclusion established?

In California, generally, the “abuse of discretion standard” or “substantial evidence standard” is applied to review the Court’s factual determinations and decisions. For example, a denial of leave to amend on sustaining an order on demurrer is tested by the abuse of discretion standard. See Schifando v. City of LA (2003) 31 Cal. 4th 1074, 1081.

Generally, a de novo standard applies where the established undisputed facts require the application of law to determine the ultimate legal conclusions. But, the Court may first apply either the abuse of discretion standard or the substantial evidence standard of review to any factual determination made by the trial court before reviewing the ultimate legal conclusions de novo.

Multiple standards of review may also apply in federal appeals. In the Ninth Circuit, questions of fact are reviewed for “clear error” and matters of discretion are reviewed for an “abuse of discretion.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). Mixed questions of law and fact are generally reviewed de novo. See Mathews v. Chevron Corp., 362 F.3d 1172, 1180 (9th Cir. 2004); see Haile v. Holder, 658 F.3d 1122, 1125 (9th Cir. 2011). [“We review … determinations of mixed questions of law and fact for substantial evidence.”]

A comprehensive guide to standards of review in Ninth Circuit appeals is posted on the Ninth Circuit’s website under “Guides and Legal Outlines, Standards of Review, Definitions.” See http://cdn.ca9.uscourts.gov/datastore/uploads/guides/stand_of_review/I_Definitions.html..

If you have any questions or need assistance with preparing and filing your appeal, please do not hesitate to contact me directly. Counsel Press provides a full spectrum of appellate services. My colleagues and I at Counsel Press’ office in Los Angeles specialize in rule-compliant appellate filings (including electronic filings and electronic submissions) in the California Supreme Court and Court of Appeal, the United States Circuit Court of Appeals and the United States Supreme Court.

Tagged: Appellate Practice, California Court of Appeal, Appellate Procedure, United States Court of Appeals for the Ninth Circuit, Litigation