Legal News and Appellate Tips

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.

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.

That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”

The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”

The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.

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 )

Lee Goldberg joins Jeff Lewis and me for a discussion about his perspective on litigation as outside general counsel for his business clients. Lee shares his three decades of experience using litigators to solve business problems, and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn (available at his website CalLawyers.com), and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:
•On litigation objectives: " My client is never principle over business. Ever."
•On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
•On hiring the right litigation team: "Local, smaller, dedicated, smart counsel is what I look for."
•On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever."
•On success: "The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Would love to hear your perspectives.

Listen to the episode here: https://lnkd.in/gsteHnG8

Please subscribe to the California Appellate Law Podcast in your favorite podcast player.

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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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Devastating trial court orders should be appealable. That is a natural assumption. And that it why it can be disconcerting to learn about appeals dismissed on grounds of nonappealability. (That is why I write about them.)

But actually, the opposite may be true: When more orders are made independently appealable, it means there is more risk that, by the time you get a final judgment, large chunks of your case will now be beyond appellate review. Failing to get review right away is far less devastating than getting no review at all.

The Fourth District Court of Appeal offers a reminder of this in State of California v. Southern California Edison Co. (D4d2 Sep. 30, 2021) 2021 WL 4471627 no. E074138 (nonpub. opn.). The court held an order granting summary adjudication on a declaratory relief claim was not appealable as a collateral order because it did not order the immediate performance of an act or payment of money. The court distinguished a similar case where declaratory relief, also summarily adjudicated, was found to be appealable. In that other case, the trial court also entered an enforcement order. The Edison court noted that, had the underlying MSA been found appealable, then it would have been unreviewable by the time the enforcement order was entered — two years later.

The lesson is that a too-easy rule of appealability could actually make it harder to get review, not easier, because parties would have to file several appeals along the way to a judgment, or else forfeit them as untimely.

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When opposing a motion for summary judgment, seeking a continuance to conduct additional discovery should always be considered. A single piece of evidence may be enough to successfully oppose summary judgment, both in the trial court and on appeal, so even if you don't have that piece of evidence yet, making a record that it might exist is critically important. And all that is required is an affidavit under Code of Civil Procedure section 437c(h), so why not file one?

But some courts may scrutinize this affidavit, as we are reminded in Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.). The plaintiff in that employment-discrimination case opposed summary judgment by filing an affidavit explaining she needed to take the deposition of the person most qualified about the employer's reorganization policy that led to the plaintiff's termination. Seems like a sound approach. But while section 437c(h) does not require much more specificity, some cases interpreting it do, and require the opposing party to state the "particular essential facts that may exist."

The plaintiff didn't include those magic words in her affidavit. So discovery denied, summary judgment granted, and affirmed on appeal.

(I offer a critical comment in the article, and would be interested to know your thoughts about it.)

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There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

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TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!