Trial Judge's Incorrect Ruling on Evidence Leads to Reversal on Appeal

Timothy Kowal, Esq.
July 2, 2021

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling."

It is true that a trial judge's rulings on evidence are rarely fertile grounds for reversal on appeal. That is because those rulings are reviewed under the deferential abuse-of-discretion standard. But does that mean evidentiary rulings are never cause for reversal?

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Electricians sued SoCal Edison for negligence after they were burned in an arc flash – an electrical discharge producing an explosion and extreme heat. Edison moved for summary judgment, arguing it was undisputed the arc flash was the result of the electrician contractors' conduct, and in any event nothing to do with a malfunction of any Edison equipment. In opposition, the injured plaintiffs offered testimony that Edison provided defective insulating caps for the electrical cables, and that those caps (called "dummy elbows") were still affixed to the electrical cables at the time of the incident, which caused the arc flash and the injuries.

The trial court granted Edison's motion, finding no triable fact disputed Edison's equipment did not cause the injuries. The trial court excluded the plaintiffs' testimony about Edison's defective dummy elbows being the cause, calling that testimony "speculative" and "conclusory."

Excluding Competent Evidence Tending to Establish a Triable Issue of Fact Was an Abuse of Discretion: 

The Second District Court of Appeal reversed, finding the trial court abused its discretion excluding the plaintiff-electricians' testimony. The testimony of both witnesses was based on their personal observations. (See Evid. Code, § 702; People v. Lewis (2001) 26 Cal.4th 334, 356 [witnesses may testify where they have “personal knowledge of the subject of the testimony, i.e., ‘a present recollection of an impression derived from the exercise of the witness’ own senses’ ”].) And the testimony was obviously relevant to a material issue.

Given this was in the context of a summary judgment motion, the court noted that the California Supreme Court has not yet decided whether a trial court's evidentiary rulings on a motion for summary judgment are reviewed de novo or for an abuse of discretion. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to decide the issue]; Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368 [“[c]ourts are split regarding the proper standard of review for the trial court's evidentiary rulings in connection with motions for ... summary adjudication”].) But the court found that, even under the more deferential abuse of discretion standard, the trial court erred.

The court did not offer any additional analysis why the trial court's ruling exceeded its discretion other than the fact that it was erroneous. But as an incorrect evidentiary ruling on a material fact in the summary judgment context can easily change the outcome, this may not be surprising. As a practical matter, then, an erroneous evidentiary ruling on a summary judgment motion will very likely be an abuse of discretion.

The upshot: Do not try to win a summary judgment motion by excluding the opposing party's evidence. Any victory by such means will likely be short-lived.

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.