Mercifully, the Supreme Court has ended the summary judgment evidence ruling waiver debate. The waiver issue arose out of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, Ann M. v. Pacific Plaza Shopping Center] (1993) 6 Cal.4th 666 and Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181. Last week, in Reid v. Google Inc. 2010 Cal. LEXIS 7544, the Supreme Court held that as long as evidence objections are made in writing or orally at the hearing, trial court failure to rule on them does not result in waiver on appeal. Amen.
In Biljac, plaintiffs filed voluminous evidence objections opposing summary judgment. The trial court refused to make formal rulings, calling such work “a horrendous, incredibly time-consuming task.” The First District held that express evidentiary rulings aren’t necessary because review is de novo, and “the parties remain free to press their admissibility arguments on appeal.” Since then, trial courts often refused to make express rulings, instead citing Biljac and stating that only competent and admissible evidence was considered.
But the real menace was waiver of the objections on appeal. For Biljac was soon shackled sub silentio by the Supreme Court in Ann M. There, ruling without any discussion of Biljac, the high court held that “because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal.” Sharon P. followed, confirming the waiver principle. But going forward, some appellate courts strictly adhered to the waiver rule, some did not.
Reid holds that "the trial court’s failure to rule expressly on any of Google’s evidentiary objections did not waive them on appeal." Reid concludes that “written evidentiary objections made [before] the hearing, as well as oral objections made at the hearing are deemed made ‘at the hearing’ [for purposes of CCP section 437c (b) (5)] …so that either method of objection avoids waiver.” And, Reid emphasized, “trial court[s] must rule expressly on those objections.”
What about the lawyers? As one appellate court put it, all too often, “litigants file blunderbuss objections to virtually every item of evidence submitted.” (Demps v. San Francisco Housing Authority (1st Dist. 2007) 149 Cal.App.4th 564, fn. 6.) As another put it, filing “innumerable objections…as part of the all-out artillery exchange that summary judgment has become” should be avoided. (Mamou v. Trendwest Resorts Inc. (6th Dist. 2008) 165 Cal.App.4th 686, 711-712.) Instead, as amicus curiae California Academy of Appellate Lawyers put it in Reid, “facilitate [meaningful rulings] by choosing [your] battles wisely and only objecting to evidence when it matters.”
Reid eradicates a waiver penalty that was particularly unfair given that, “the objector must yell and scream and stamp his feet…to [try to] force the trial court to rule on those objections.” (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 (Vogel J., dissenting).) Choose evidence objections carefully, submit them in proper written form and focus the trial court on them during the hearing. If counsel takes this approach, no kicking and screaming in the courtroom should be necessary. And perhaps, no hair pulling, in chambers.
