Today, Division Eight of the Second Appellate District of California issued its decision in Gaines v. Fidelity National Title Insurance Company (Dec. 12, 2013 B244961). The case involved the dismissal of a fraud case in the context of a sale of a home. On appeal, the court reviewed the dismissal for failure to bring the matter to trial within five years as required by Code of Civil Procedure, section 583.310 and 583.360.3. The decision is most notable for its dissent by Associate Justice Laurence D. Rubin. The majority voted to affirm the dismissal as to all but one of the defendants. In his dissent, Justice Rubin concluded:
In my view the dismissal of this lawsuit under the circumstances described defeats the substantial ends of justice. Instead, it rewards parties who, it would appear, have played a major and unlawful role in the theft of someone’s home.
To reach this conclusion, Justice Rubin thoroughly discussed and lamented the unworkable “abuse of discretion” standard of review employed by California appellate courts. After discussing the various formulations of the rule, including the common formulation defining abuse of discretion as trial court orders that are “arbitrary, capricious or whimsical,” Justice Rubin observes:
The colorful “whimsical, capricious, arbitrary” standard proves the point. I am doubtful that any judge in our state has made a ruling out of whimsy or caprice. Whim, for example, is “a capricious or eccentric and often sudden idea or turn of the mind.” (Merriam-Webster, Electronic Edition [2013, http://www.merriam-webster.com/dictionary/whim%5D [as of December 5, 2013].) This does not describe judicial decision making. If we are truly engaging in appellate review to weed out the whimsical or capricious decision, I doubt we would ever find abuse of discretion. Labeling a trial judge arbitrary is so pejorative, appellate judges would almost always be adverse to finding abuse of discretion under that standard. Describing a trial court decision “as an act exceeding all bounds of reason” or “patently absurd” is also inherently inflammatory.
Justice Rubin concludes that the abuse of discretion standard should be applied using a “deference continuum” discussed by now retired Associate Justice Howard B. Weiner in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal. App. 3d 1019. Under that formulation, discretion is viewed in terms of how much deference appellate courts are to give trial courts. Great deference should be granted in areas involving factual determinations or where a trial judge’s position in the courtroom gives the judge a superior opportunity to get “the feel of the case.” Justice Rubin than opines that applying the abuse of discretion standard using Justice Weiner’s “deference continuum” should be moderated “in conformity with the spirit of the law” and used in a manner that does not “defeat the ends of substantial justice.”
Justice Rubin’s deference-focused approach is enticing and, at first blush, seems more useful for appellate practitioners to employ in their advocacy and for justices to use in their opinion writing. However, as one observer notes here, advocating to an appellate court that an outcome should be reversed because the trial court defeated “the ends of substantial justice” may prove no more persuasive than advocating reversal because the trial court “abused its discretion.” The search for a useful, objective application of the “abuse of discretion” standard continues…