Formatting Matters: MSJ Evidence Objections Overruled That Did Not Conform to Rules of Court Format

Timothy Kowal, Esq.
November 22, 2021

If you work in court, you have seen the basic template for submitting written objections to evidence supporting a motion. It is the chart where is listed the objectionable matter, the objection, and a space for the judge to indicate whether the objection is "sustained/overruled." When you need one of these, you probably search your computer for the last one you did and get to work, without much thought to whether the format of the chart is quite correct.

Time for a systems check. In Scofield v. Hanson Bridgett LLP (D3 Nov. 8, 2021) 2021 WL 5176140 (no. C081115) (nonpub. opn.), a plaintiff's written evidentiary objections, filed in response to the defendant's motion for summary judgment, were overruled because they "fail[ed] to number the objections consecutively," and did not provide a "space for the court to date or sign its rulings." And on appeal, the court held this ruling on pure formatting grounds was within the trial court's discretion: A court does not abuse its discretion in holding a party to the mandatory formatting requirements or in declining to give a party a second chance to file properly formatted objections. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8-9.)

Here is the formatting rule:

Rules of Court, rule 3.1354(b) dictates the format for evidentiary objections: “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: [¶] (1) Identify the name of the document in which the specific material objected to is located; [¶] (2) State the exhibit, title, page and line number of the material objected to; [¶] (3) Quote or set forth the objectionable statement or material; and [¶] (4) State the grounds for each objection to that statement or material.” Rule 3.1354(c) requires a proposed order for the court to rule on each objection.

Here is one of the visuals included with the rule itself:

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Here, in addition to forgetting to number the objections and failing to include a space for the judge to sign, the objecting party also included a "brief explanatory argument" with the objections, which runs afoul of rule 3.1354 ("[T]he objections must not be restated or reargued in the separate statement.").

The court also noted that the evidence probably didn't affect the outcome anyway, and there was some grounds for finding the evidence had foundation. Trial counsel always appreciate those explanations from the courts, because it means they do not have to explain to their clients that their technical oversight was responsible for the loss.

Note: The plaintiff-appellate advocated, as does this commentator, that a trial court's evidentiary rulings should be reviewed de novo, not for abuse of discretion. The authority for this is Reid v. Google, Inc. (2010) 50 Cal.4th 512. In Reid, the Supreme Court applied de novo review to evidentiary objections made at summary judgment, but not ruled upon by the trial court and which the prevailing party expressly invited the court to consider. (Id. at p. 535.) Reid's holding was limited, and neither situation that existed in Reid existed in this case. And enforcing formatting rules is a matter of discretion. So abuse of discretion is the correct standard here. But otherwise, advocates should keep pushing the Reid rule. Foundation and hearsay offered at trial or in MSJs are not matters of discretion, and appellate courts ought to stop treating them as though they are.

Takeaway: Before you prepare another set of written evidentiary objections, review Rules of Court, rule 3.1354(b). It has a handy visual of what the chart should look like.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.