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: Summary Judgment

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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Tip When Defending a Judgment on Appeal: Do Not Argue Issues the Appellant Waived

Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue whether an employer's ERISA plan failed to give notice of a lapse in benefits, an issue appellant had failed to raise in her brief, the court was able to reach the issue. Held: summary judgment reversed.

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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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