Legal News and Appellate Tips

On this cases-and-tidbits episode, Jeff Lewis and I discuss:

• Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed.

• Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.

• Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.

• Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI.

• Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” declaration about matters outside the declarant’s personal knowledge. The court held that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence.

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915) supports that consensus.

But the court still reversed. There are limits to what qualifies as evidence that can shift the burden of proof in the summary judgment context to the nonmoving party.

The important thing to take away from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witnesses “corporate representatives” or “persons most qualified.” These are deposition tools, not end-runs around the rules of evidence. As the court put it:

“There is no special category of “corporate representative” witness, as the trial court suggested. There is no exemption from the Evidence Code for a witness who has conducted an “independent review,” whatever the trial court meant by that phrase.”

Comment: The opinion is not clear how the trial court “abused its discretion,” as opposed to merely commit legal error, **in overruling the hearsay and foundation objections to Avon’s evidence—other than that the evidence was, in fact, hearsay and devoid of foundation. The upshot is that the distinction between de novo and abuse of discretion when it comes to evidentiary rulings may come down to more of a mood or nuance than a legally measurable difference.

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it.

A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at trial, the shrewd defendant in Quintero v. Weinkauf (D1d4 Mar. 3, 2022 no. A159812) 2022 WL 620722 (nonpub. opn.) was keenly aware of three important things about using audio and video footage at trial: (1) it must have proper foundation; (2) audio recorded without consent generally is illegal; and (3) it may implicate the right against self-incrimination.

But none of the defendant’s strategies worked for one simple reason: he was transparently attempting to lie to the court. The plaintiff recovered a judgment totaling $2.2 million against the defendant (who was found to be worth $1.5 million).

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549). After the defendant filed a motion for summary judgment, the plaintiff's attorney pressured a witness to sign a declaration. Based on that declaration, the court denied the motion. But a later deposition revealed nothing about the declaration was true, and that the witness signed it just to get the attorney to leave her place of employment to avoid trouble.

I was surprised to find the court offered no admonition against the conduct of plaintiff's counsel. What counsel did here seems to me very close to suborning perjury. True, the case is not over, and the trial court will have the opportunity to make whatever admonitions are appropriate. But then again, the indulgent trial court would have credited the false declaration — even after the evidence showed it was false — had the Court of Appeal not stepped in. I think a word about ethics was called for here.

Does this surprise you, Donald Patrick Eckler, DAN COTTER, Kansas Gooden, Lindsey Lawton?

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Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)

In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 (unpublished), the Second District also provides a good illustration for personal-injury plaintiffs how to get key evidence into the record, and how to make a judgment more appeal-proof through the use of jury instructions.

This is another installment in a series of posts about ways appellate courts have cited unpublished cases, despite Rule of Court 8.1115. These cases might inspire ideas of how, with a little ingenuity, you too might bring up unpublished cases. But there is one thing you can bank on: if ever we find an example of someone being sanctioned for violating 8.1115, the perpetrator will not be an appellate justice. So follow these judges' examples, if at all, with extreme caution.

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get you there on matters of "substantial consequence" without following the statutory procedures.

The case is also a good illustration of a key point of appellate practice: Even if the trial court relies on improper evidence, that error is not reversible unless the evidence prejudiced the appellant. If there was other substantial evidence supporting the findings, as there was here, the error will be deemed harmless.

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