In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145, covered here. On November 8, the court ordered the opinion be published.
Doe v. Software One holds that evidentiary rulings in deciding a motion for summary judgment are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion. The challengers urged the Supreme Court’s opinion in Reid v. Google, Inc. (2010) 50 Cal.4th 512 created the possibility for more favorable de novo review, and a couple appellate courts had followed that lead.
The publication request (filed by this commentator) noted that this split of authority was likely to come before the Supreme Court. And California Rules of Court rule 8.1115 prohibits litigants from citing to the nice summary of the split in Software One opinion unless the opinion were published. (This phenomenon was discussed on the California Appellate Law Podcast episode 22 with David Ettinger and Dean Bochner here, and video clips here and here.)
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 www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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