Legal News and Appellate Tips

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.

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.

CEB has published my article, “MSJ Evidence Rulings Are Discretionary, California Appellate Court Holds in Split of Authority,” about the recent published opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 holding that evidentiary rulings in connection with summary judgment are reviewed on appeal for abuse of discretion. The article is here: http://bit.ly/3g090pV

The opinion is interesting because ever since the Supreme Court’s holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, which applied de novo review, practitioners have watched carefully to see if a trend of more rigorous review of evidentiary rulings might emerge in the context of motions for summary judgment.

But most cases have not followed Reid’s opening. Doe v. Software one provides a nice summary of the cases since Reid.

I also offer a comment that the preferable approach would be to treat boilerplate objections as waived, rather than indulging the fiction the trial court actually considered them all.

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 (see here: http://bit.ly/3EkEmAQ ). On November 8, the court ordered the opinion be published: https://bit.ly/3WP2Dq0

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.

I filed the publication request. I 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, at www.CALPodcast.com )

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 Reid v. Google, Inc. (2010) 50 Cal.4th 512, practitioners have watched 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. Reid applied de novo review—rather than abuse of discretion—to evidentiary objections made at summary judgment when the trial court failed to rule on them. (Id. at p. 535.) As the Supreme Court noted, it is hard to know if the trial court abused its discretion if it did not exercise any.

So supporters of more rigorous review have been disappointed that, despite Reid, every appellate district has published opinions distinguishing Reid and applying the abuse-of-discretion standard to evidentiary rulings. (There are only two published cases since Reid that have applied the de novo standard: Pipitone v. Williams (2016) 244 Cal.App.4th 1437, and Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206.)

And that is also what happened in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 (nonpub. opn.), which distinguished Reid and applied the abuse-of-discretion standard to evidentiary rulings connected with a motion for summary judgment.

The Fourth District noted that “the weight of authority since Reid supports application of the abuse of discretion standard.” “The court specifically pointed to the volume of objections raised—nearly 100-pages worth: This quantity is not unusual for a motion for summary judgment: “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.” (Reid, supra, 50 Cal.4th at p. 532.)”

Comment: The court’s analysis is valid, but one still has misgivings about treating hearsay objections as discretionary. The better approach, in my view, would be for the appellate courts to treat this issue as one of waiver. Code of Civil Procedure section 437c(b)(5) requires that evidentiary objections to be made at the hearing. So if the opposing party simply lets a ream of written objections stand without raising them at the hearing, then the objections should be treated not as overruled by operation of the trial court’s discretion, but as waived by operation of Reid and section 437c(b)(5).

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).

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.

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.)

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 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."

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.

"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.