New Cases on MSJ Evidence Rulings and Elder Abuse Attachment Orders

Timothy Kowal, Esq.
December 13, 2022

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.

We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.

Cases discussed:

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Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 

And I'm Tim Kowal both Jeff and I are certified appellate specialists and uncertified podcast co hosts, we tried to bring our audience of trial attorneys and appellate attorneys some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. Yes.

Jeff Lewis  0:34
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Tim Kowal  0:57 
Okay, and we're back with another episode of new cases for your attorney toolkit. We're going to talk about a couple of cases today one involving the topic of motions for summary judgments are evidentiary rulings in deciding a motion for summary judgment reviewed under the same deferential abuse of discretion standard as evidentiary rulings at the trial stage, or might they be reviewed under the more under the de novo standard of review? Well, a recent published case lays out the split of authority on that subject following the Supreme Court's opening up the can of worms in its read versus Google decision back in 2010. But it kind of closes the door on the possibility and suggests that that it's going to be abuse of discretion, but it is an issue teed up for a Supreme Court review. We'll talk about that decision. And we'll also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? The answer is maybe but not based on statutory penalties. So the attachment order in this case we'll talk about had to be reversed. Alright, so the first case we're going to talk about dough versus software one. The question is, can you get a reversal on appeal based on the trial court's improper rulings on evidence ever since the Supreme Court's holding in read versus Google Inc. in 2010, practitioners have been waiting and watching carefully to see if a trend of more rigorous review of evidentiary rulings might emerge, at least in the context of motions for summary judgment read had applied de novo review rather than abuse of discretion where there were evidentiary objections made at summary judgment and where the trial court had failed to rule on them, as the Supreme Court in read had noted, it is hard to know if the trial court abused its discretion if it didn't exercise any. So that's how it came to the conclusion of reviewing them de novo. So supporters of that more rigorous standard of review have been disappointed in subsequent years that despite read every Appellate District seems to have been issuing published opinions distinguishing read for one reason or another and applying the abuse of discretion standard instead to evidentiary rulings on at the MSJ stage. In fact, there are only two published cases since read that have applied the de novo standard they are pipitone versus Williams 2016. case we'll put links to all cases referenced in the podcast in the show notes. And the other case, applying the de novo standard of review since read is Alexander versus Scripps Memorial Hospital, La Jolla, a 2018 case and that is an abuse of discretion standard is the standard that was applied in the recent case of dough vs. Software one, Inc. It's a fourth district division three case October 2022. It is a published opinion, the court decided to publish it after Gernon party requested publication that a nonparty happened to be yours truly, the court distinguished read and apply the abuse of discretion standard to evidentiary rulings connected with the motion for summary judgment. The fourth district noted that, quote, the weight of authority since read supports application of the abuse of discretion standard. And the court specifically pointed to the volume of objections raised there were nearly 100 pages worth of objections, the court noted this quantity. Well, this quantity is not unusual for a motion for summary judgment. And the court noted that we recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections without focusing on those that are critical. My comment on this, Jeff was that that's a completely valid observation that the court made, but I still had misgivings about treating hearsay objections as discretionary. Now, I don't know about you and when I was in law school, my evidentiary exam was multiple choice in the bar exam had evidentiary had multiple choice questions on hearsay. It's either hearsay or it's not it's not subject to good lawyering, the better approach in my view would be for the appellate courts to treat this issue as one of waiver. If you bombard the court with 100 pages of objections, and you don't follow up with them at the hearing and say, Your Honor, I need to know how the court rules on my objections as to this critical material fact, then I think it's fair for the Court of Appeal and the trial court to deem those objections as having been waived or 7437 C. In fact, Act requires that the objections be raised orally at the hearing. And so if the trial attorney fails to do that, and I think rather than de escalating the standard of review from de novo to abuse of discretion, couldn't the court get the same result by finding that the objections were waived?

Jeff Lewis  5:15 
Yeah, interesting. Once again, let me say I agree and disagree with you on the issue of waiver. Yeah. If you only have 20 minutes to argue a case and you feel like an evidentiary issue is important. You could spend some of your 20 minutes arguing specific evidentiary objections as to specific evidence as a way of preserving that issue, and helping your assistance in terms of appellate review. But I have to say, on a practical level been doing this over 20 years, I don't recall ever succeeding on an appeal involving an evidentiary objection that was wrongly decided and change the outcome of an appeal. So that's kind of interesting, in terms of which standard of review applies, but they're both big hills that are impossible to overcome, in my experience.

Tim Kowal  5:55 
Well, you may be right. But even if I grant that point, that it may not make a difference, if even if the Court were to find Yes, the court found that this was hearsay, when it was really not hearsay or vice versa. You know, we go to the second question of whether this was prejudicial to the case. Why not just decide on that second prong rather than turning evidentiary calls on black and white evidentiary issues into factor based or discretionary calls?

Jeff Lewis  6:18
Yeah, yeah, that's a fair point. You know, I think in the times that I've had appellate courts rule on the propriety of evidentiary objections, the ultimate outcome has been either it was harmless or not necessary for the court's determination.

Tim Kowal  6:30 
Yeah, yeah. It's sometimes evidentiary calls are hard to make. But you always wind up having to do that second step. Was this evidence really that important that it really turned the tables? And usually the answer is no. And then you have to move on to preponderance of the evidence. There were so many wrong evidentiary calls that would have changed the whole.

Jeff Lewis  6:50
Yeah, I mean, let me say with the exception of maybe the parol evidence rule, which I've dealt with quite a bit on appeals, with exception of that which is more substantive and evidentiary. If you're an appellate lawyer, and you're drafting an opening brief around evidentiary objections, you should be having a long conversation with the client about the odds of winning or losing that appeal. Well, that's

Tim Kowal  7:08 
right. Okay, let's go to the next case. This is Royals vs Lu, this the case where that talks about attachment orders in the context of an elder abuse case. So in the case of royals versus Lou at July 2022, published opinion, a nonagenarians new 35 years Jr. wife started liquidating his assets. And when she got wind of this, the daughter Lisa Royals intervened, and in her resulting lawsuit, not only did she allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for statutory penalties and attorneys fees three times that amount. And despite the requirement that attachments be based on retrospective relief, rather than prospective debts, the trial court granted the motion and issued a $3.4 million attachment order in that case, the First District Court of Appeal reversed Royals. His pleadings and affidavit were quote, unclear about what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief and quote, and after the appellate courts request for supplemental briefing on that point, the court found that Royals elusiveness was troubling, the Court held that seeking damages based on penalties and punitive damages or in an open ended way to justify an inflated damages award cannot satisfy the attachment statutes. There was also an interesting procedural quirk in this case, because the trial court had actually ordered the attachment vacated, purportedly rendering the appeal moot. This was after the Appeal had been filed. And after there, there were some noises about the Court of Appeal, probably not going to affirm that attachment order. The Royals had gone back to the trial court and asked for it to be vacated. And the trial court granted that request and vacated the attachment order. And then Royals tried to go go and get the appeal dismissed as moot court said no way a trial court cannot vacate an order once it's been appealed. So that was I thought that was interesting. Yeah,

Jeff Lewis  9:10
that is interesting. As was your use of the word nonagenarian? I haven't heard that term before. What does that mean?

Tim Kowal  9:16
90 Something person?

Jeff Lewis  9:18 
A 90. Okay. Got it. Great. Yeah, you know, attachment is kind of like preliminary injunctions. Attachments are a quick way to end a lawsuit before it starts by tying up and starving the other side of funds, they need to litigate the case. So it's not surprising to me that Court of Appeal kind of puts the brakes on overly aggressive speculative damages calculations, the right result from my point of view.

Tim Kowal  9:39 
Yeah, yeah, I thought so. Okay, one last case. Jeff, you reminded me of this. I had I had seen this. This is let them choose versus San Diego Unified School District issued just just the week before Thanksgiving, November 2022. It's a published opinion out of the fourth district of San Diego. We talked about this case actual The after it was after the appeal was first filed back in January of this year. We talked about this with Rick Jaffe, in Episode 21 of the podcast. The trial court there enjoined the school district from imposing a vaccine a COVID vaccine mandate on preclusion grounds. The trial court enjoined it on preclusion grounds reasoning that the state's Vaccine Program preempted the field. And so if there was going to be any vaccine mandates, they had to come from the state who had already kind of inserted itself into this area. And we see this, we've seen this frequently in the federal context, but I hadn't personally seen it very much in the state context, the Court of Appeal did affirm the trial court's injunction of the order. So if there's going to be COVID Rule mandates, it has to come from state policy, not district by district currently seems to be the upshot of let them choose. Yeah,

Jeff Lewis  10:49
you know, it's interesting, I saw this, it came up with my Twitter feel feed Twitter still up and running, by the way. And I was surprised because a lot of people who are let's just say against vaccines, I had touted this somehow, as a court striking down vaccine mandates when it was really just striking down the idea of having a patchwork of different rules applying in different districts across the state wanting uniformity of approaches to the vaccines. And so that's what caught my eye.

Tim Kowal  11:14 
Yeah, I haven't had a chance to read the opinion yet. It would be an interesting question. Generally, you'd like the idea of there, there being some flexibility based on region, if there's a region that doesn't have a lot of danger, or a lot of cases of COVID or any particular disease going around. You might like some flexibility, but I wonder if the state can provide for that flexibility, specifically, maybe

Jeff Lewis  11:34 
a lot, a lot of cases were filed one in particular that I'm aware of BRAC V Newsom, that's still pending, I think before the Supreme Court is trying to decide whether to take review on that made that very argument that districts are not fungible, and some districts should have more flexibility and attacked Governor Newsom for trying to overly mandate a one size fits all approach to COVID. And ironically, this case says, yeah, leave it up to the states.

Tim Kowal  12:00

Yeah, yeah. It is a little bit each side trying on the others hat right. Beside you usually says let it go jurisdiction by jurisdiction is now saying it has to be one size fits all.

Jeff Lewis  12:10
Now let them choose the November 22. Decision. It'd be interesting to see if somebody takes that up to the California Supreme Court or let's that's that's be the final word.

Tim Kowal  12:20 
Right. There was another interesting procedural tidbit in the let them choose case the Court of Appeal had granted the district's petition for supersedeas staying the injunction pending the appeal. So at least early on in the appeal, the Court of Appeal felt that the district's position was strong enough presented substantial issues warranting a stay of that injunction, and I don't think it in the interim there was I believe, don't quote me on this, but I believe that the district had not was not requiring the vaccine during that time that maybe it had stayed its own order. Its or its own injunction. But I did think that was interesting. Sometimes when you see a court grant super Sidious tends it may suggest that it's leaning with the appellate but that wasn't the case here. Yeah, yeah. Interesting. All right. And then we had just a couple of other tidbits. First one has to do with the San Diego District Attorney's office that was disqualified in a Black Lives Matter prosecution for having made public remarks that suggested bias the case is People vs. lastra that was issued in September of 2022. And there the Court of Appeal affirmed the trial court's recusal of the entire DHS office. Oh, sorry. I had been saying San Diego this looks like this was San Luis Obispo from prosecuting some Black Lives Matters protesters holding that the extra judicial comments of the district attorney might suggest that he might not prosecute the matter in a neutral fashion given his demonstrated antipathy to the BLM Movement. Instead, the California Attorney General's office will be the ones prosecuting the cases the DA is comment that got the office in trouble was made to a Facebook group and explaining the DHS decision to prosecute in the opinions description. The DEA is Facebook post stated that the DEA claimed indicated that the DEA claimed that the BLM Movement quote is domestic terrorism, quote downright evil, no brains or souls and quote and it posted pictures of a BLM billboard burning in flames. The other statement that was cited in the opinion was by Candace Owens and one Tony Perkins, two people with whom the DA had appeared at certain events. But I had noted that the opinion did not make it clear why these statements would be imputed to the entire da 's office. The Court of Appeal noted that in affirming it was deferring to the trial court's factual determinations.

Jeff Lewis  14:36 
Yeah, you know, interesting, I had a few thoughts about this. One is could future members of the BLM were being prosecuted not necessarily for being involved in a BLM protests, but just They're well known BLM members? Could they also seek to recuse the entire DHS office in a future criminal prosecution? I wonder that and then I also, you know, I wonder how much of the outcome of this was due to just the deference of the Court of Appeal he'll say we're gonna defer to the trial court. Is it a better position to look at these issues and also this week there was news out of Florida, it kind of reminded me of this case that the Florida Governor, you know, had fired an attorney general who had publicly proclaimed he was not going to properly enforce anti abortion laws that AG has now filed lawsuit against Governor DeSantis. You know, this weird, blurred line between statements made by prosecutors and how they come back and bite you in terms of lawsuits or in this case, having a whole office recused?

Tim Kowal  15:29 

Yeah. Yeah, tha tis interesting. It's a matter of the personnel becoming political vice versa. How much? You know, obviously, a lot of these actors, you do have opinions on these matters. Sometimes you'd like to think well, I'd like to know what their opinions are, rather than being quiet about it. And I just we never get to find out their motivations. Sometimes it's it may seem refreshing that they say what they feel they know there's, you know, sometimes we like to have the words out in the open so we don't find out find out about them

on the slide.

Jeff Lewis  15:57 
Yeah, yeah, absolutely. Absolutely.

Tim Kowal  15:59 
Okay. Yeah,  Ithink that's all we had to cover. Jeff this week. Yeah,

Jeff Lewis  16:03

another quick thank you to our podcast sponsor casetext or listeners of our podcast, they get a 25% lifetime discount if they go to, that's, you'll get a 25% lifetime discount.

Tim Kowal  16:17 
And if you have suggestions for future episodes, we are coming up on the 2023 season of The California appellate law podcast. If you have suggestions for what we should be covering what guests we should have what topics we should be talking about on the podcast, please email us at info at Cal But as always, our upcoming episodes will be talking about more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  16:39
All right, see you next time.

Announcer  16:41 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao That's c a l Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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