June 5, 2013

Court of Appeal approves pattern jury instruction on “clear and convincing” evidence (Nevarrez v. San Marino Skilled Nursing)

This is not a punitive damages case. But it merits discussion here because it addresses the adequacy of the official California jury instruction on the clear and convincing evidence standard of proof, which applies in all punitive damages cases.

This is not the first time the California Court of Appeal has considered how courts should explain the clear and convincing evidence standard to jurors. Far from it. Back in the early 1990’s, the Second Appellate District, Division Three, criticized the definition of clear and convincing evidence set forth in BAJI No. 2.62, the pattern instruction in use at the time. That instruction defined clear and convincing evidence as “evidence of such convincing force that it demonstrates, in contrast to opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof.”

In a case called Mock v. Michigan Millers Mutual, Division Three said the BAJI No. 2.62 definition was too weak, because it did not reflect the stringent standard established by the California Supreme Court in In re Angelia P.: “so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.”

A few years later, however, Division Three backed away from that criticism in a 2-1 decision. In that case, Mattco Forge v. Arthur Young & Co., the court said that the In re Angelia P. formula was too close to the “reasonable doubt” standard used in criminal cases.

In 2003, the Judicial Council approved the CACI instructions as the official preferred jury instructions for use in California. The CACI instructions contained a definition of clear and convincing evidence that was even weaker than the BAJI formulation that Division Three criticized in Mock.  CACI No. 201 says that clear and convincing evidence means “that the party must persuade you that it is highly probable that the fact is true.” By watering down the definition of clear and convincing evidence, the CACI instructions arguably opened the door to revisiting the Mock/Mattco Forge debate. Indeed, we are aware of several cases in which trial courts agreed to give special instructions on this issue because they concluded that the standard set forth in CACI No. 201 is inadequate.

Today, however, the Court of Appeal (Second Appellate District, Division Four) gave CACI No. 201 its blessing in this published opinion. The opinion acknowledges the history on this issue, but declines to embrace the Mock rationale. Instead, the opinion follows the reasoning of Mattco Forge and holds that the trial court properly rejected the defendants’ proposed special instruction, which incorporated the In re Angelia P. definition of clear and convincing evidence.

We decline to hold that CACI No. 201 should be augmented to require that “the evidence must be ‘so clear as to leave no substantial doubt‘ and ‘sufficiently strong as to command the unhesitating assent of every reasonable mind.’ ” Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent authority mandates that augmentation, and the proposed additional language is dangerously similar to that describing the burden of proof in criminal cases. (Mattco Forge, supra, 52 Cal.App.4th at p. 849.) The trial court did not err in rejecting it.
We wouldn’t be surprised to see this case end up in the California Supreme Court.