by Archer Norris PLC

Misdirection is a form of deception employed by magicians to focus the attention of an audience on one thing in order to distract its attention from another. For example, a magician announces that he is going to make a donkey appear behind a curtain in the middle of the stage. While his beautiful assistant distracts the audience by making a sudden, scantily-clad appearance, the magician does something very ordinary—leads a donkey onto the stage. A moment later, the magician drops the curtain to the ground, revealing a real live donkey. The audience is amazed. Because its attention was focused on the beautiful assistant, the audience did not notice what would otherwise be an obvious act. Thus, thanks to misdirection, the magician was able to lead his audience to draw the false conclusion that the donkey had “magically appeared.” 

In a recently-published decision, Rayii v. Gatica (2013) 218 Cal.App.4th 1402, one party attempted to use this same technique to lead the Court of Appeal to draw the false conclusion that the jury’s finding was not supported by sufficient evidence. The Court of Appeal, however, was not amazed.  Rayii reminds us that, unlike a magician’s audience, the Court of Appeal is not easily distracted. The decision is also a reminder that on appeal, the standard of review matters.  

Rayii suffered injuries when a car driven by Gatica collided head on with the car that Rayii was driving. At the time, Gatica was employed by Gateway at its warehouse in Valencia. Gatica’s supervisor had sent him to a jobsite in Lancaster, and he was returning from there at the time of the collision. But the evidence was conflicting as to whether Gatica was driving home or returning to the warehouse. Ultimately, Rayii was awarded no relief against Gateway under the doctrine of respondeat superior because the jury found that Gatica was not acting in the course and scope of his employment at the time of the collision. 

On appeal, Rayii contended that this finding was not supported by substantial evidence. According to Rayii, the evidence showed that Gatica was returning to Gateway’s warehouse in Valencia from the jobsite in Lancaster. The evidence also showed that Gatica was on a “special errand” for his employer, so he was acting within the course and scope of employment regardless of whether he was returning to the warehouse. Rayii cited all the evidence in the record that supported these contentions, but she completely failed to cite and discuss any contrary evidence. This attempt at misdirection proved fatal to Rayii’s argument on appeal. 

The court explained, “An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient. The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment. An appellant, such as Rayii, who cites and discusses only evidence in her favor fails to demonstrate any error and waives the contention that the evidence is sufficient to support the judgment.” (Emphasis added.) Thus, Rayii’s efforts to distract the court by drawing its attention to only the facts in her favor could be described as a magic trick that failed miserably.  

This case serves as a reminder that an appellate court is a skeptical audience. Its attention is neither willingly nor easily diverted away from the standard of review that is essential to resolving an issue on appeal. So telling the court, “Look over here!” when, in reality, something important is happening over there, is a trick that’s doomed to fail. When crafting legal arguments, attorneys would do well to remember that the court will always see the magician leading the donkey onto the stage, and not just the beautiful assistant.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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