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Law Practice,
Judges and Judiciary,
Appellate Practice

Apr. 21, 2022

Appellate review of the failure to exercise discretion

When evaluating a trial court’s rulings for potential abuse of discretion, look not only for both unreasonable trial court rulings, but also an erroneous failure to exercise any discretion at all.

David M. Axelrad

Partner, Horvitz & Levy LLP


UC Hastings COL; San Francisco CA

On appeal, it is critically important to understand the standard by which the appellate court will review the issues presented for decision. There are three basic standards: (1) the substantial evidence standard governing appellate review of the sufficiency of the evidence to support a judgment or order, (2) the de novo standard governing an appellate court’s independent review of questions of law, and (3) the abuse of discretion standard governing review of decisions entrusted to the discretion of the trial court. (See generally Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021)).

My focus here is on the abuse of discretion standard, which covers myriad trial court rulings “span[ning] the variegated landscape of the law.” (Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1023.) This includes, for example, attorney fee awards, discovery rulings, imposition of sanctions, admissibility and exclusion of evidence, child custody and visitation, amendment of pleadings, continuances, the order of trial, and whether to grant a mistrial. (See generally Eisenberg, Cal. Practice Guide: Civil Appeals and Writs, supra.).

It is very difficult to prevail on appeal under the abuse of discretion standard, which is highly deferential to the trial court – a trial court does not abuse its discretion unless its ruling is “‘so irrational or arbitrary that no reasonable person could agree with it.’” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773; see Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452 [‘“the abuse of discretion standard measures whether, given the established evidence, the lower court’s action ‘falls within the permissible range of options set by the legal criteria’”]; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881–882 [“Under [the abuse of discretion] standard, a trial court’s ruling ‘will be sustained on review unless it falls outside the bounds of reason.’ [Citation.] We could therefore disagree with the trial court’s conclusion, but if the trial court’s conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court.”]; Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 [abuse of discretion standard “entail[s] considerable deference to the fact-finding tribunal”]; Eisenberg, Cal. Practice Guide: Civil Appeals and Writs, supra. [“so long as the trial court applied governing rules of law in exercising its discretion, the court’s decision cannot be said to amount to a reversible ‘abuse’ of discretion”]).

Sometimes, however, an abuse of discretion can be shown where the trial court fails to exercise its discretion. Recently, for example, in Riskin v. Downtown Los Angeles Property Owners Association (Mar. 17, 2022, B309814) ___ Cal.App.5th ___ [2022 WL 805377] (Riskin), the plaintiff filed a request for documents under the California Public Records Act (Gov. Code, § 6250 et seq.). The trial court ordered production of only 20 sentences and then awarded the plaintiff over $70,000 in statutory attorney fees and costs. (Riskin, at p. *2.) The Court of Appeal reversed because the trial court erroneously concluded it had no discretion to deny attorney fees where the results obtained by the prevailing party were minimal or insignificant.

In reaching this conclusion, Riskin stated the established principle that “a failure to exercise discretion is [itself] an abuse of discretion.” (Riskin, supra, ___ Cal.App.5th ___ [2022 WL 805377, at p. *4]; ibid. [“an abuse of discretion is shown where a trial court errs in acting on a mistaken view about the scope of its discretion”]; see Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 842–843; Fadeeff v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 104; Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 782; Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176–177; Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1090–1091; Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 392; Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1180; Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1696; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297–1298). The case law represented by Riskin, in turn, reflects the broader principle that “[a]n order that implicitly or explicitly rests on an erroneous reading of the law necessarily is an abuse of discretion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540; see Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712, fn. 4 [“‘The trial court does not have discretion to depart from legal standards’”]).

Because a trial court’s failure to exercise discretion presents a question of law, raising this issue on appeal can be very effective because an appellate court will not accord the usual deference to the trial court’s ruling. (See People v. Garcia (2020) 46 Cal.App.5th 786, 790, review granted June 10, 2020, S261772 [“Because this question involves the scope of a trial court’s discretion rather than its exercise, it is a question of law reviewed de novo rather than a question of discretion reviewed solely for an abuse of discretion”]; Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 767–768 [“The deferential abuse of discretion standard applies only if the trial court actually exercised its discretion. If the record clearly shows that the court failed to exercise its discretion, as here, we can neither defer to an exercise of discretion that never occurred nor substitute our discretion for that of the trial court.”]). This means that, when evaluating a trial court’s rulings for potential abuse of discretion, look not only for both unreasonable trial court rulings, but also an erroneous failure to exercise any discretion at all.


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