Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Evidentiary Objections

Trial Court’s “Blanket” Rulings on Evidence May Be Treated with Suspicion

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal.

The appellant argued improper “blanket” rulings were the reason an anti-SLAPP motion was granted against him in *[Foley v. McElroy](https://casetext.com/case/foley-v-mcelroy?resultsNav=false&jxs=ca&tab=keyword)* (D4d1 Dec. 6, 2021 no. D077299) 2021 WL 5766572 (nonpub. opn.). But the Court of Appeal disagreed and affirmed.

Also: remember that anti-SLAPP orders are directly appealable. Do not wait around for a judgment.

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

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 that 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.)

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False Declaration Signed Under Pressure Does Not Create a Triable Issue

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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Do Curative Instructions Cure Anything?

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

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When Does a Motion in Limine Preserve Trial Objections?

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

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

"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."

Responding to that challenge is Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.). Injured electricians sued Edison for negligence. The trial court granted summary judgment for Edison by excluding the plaintiffs' testimony.

This was an abuse of discretion. The evidence was based on personal knowledge, and it was relevant to a material fact. Reversed.

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.

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Objections to Evidence Improper, Summary Judgment Reversed

Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other […]

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In Summary Judgment Appeal, Split Decision on Unruled-Upon Objections, Conclusory Expert Opinions, and Design-Immunity Defense

Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out […]

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