Aug07

California Supreme Court Throws Out the Waiver Rule!

Posted on August 7, 2010 by Jeff Huron

The California Supreme Court's recent decision in Reid v. Google, Inc. is welcomed news for judges and trial lawyers.

Previously, if a trial court failed to rule on objections to summary judgment evidence, the objections were waived and not preserved for appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1.) The waiver rule created tension between overworked judges that are often bombarded with objections to summary judgment evidence, and trial lawyers who were required to request rulings on the objections at least twice at the summary judgment hearing to avoid waiving them. The waiver rule also presented problems for Courts of Appeal: some applied the waiver rule; while others considered evidentiary objections despite the lack of trial court rulings. In Reid, the California Supreme Court disapproved of its decisions Ann M and Sharon P, so the waiver rule and the tension it created are behind us.

Now, things are simple for all concerned. To preserve objections for appeal, litigants must simply object to specific evidence in writing before, or orally at, the summary judgment hearing. See Cal. Rules of Court, Rule 3.1352. If the trial court fails to rule on the objections, then "it is presumed that the objections have been overruled, [] the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal."

The Supreme Court also disapproved of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419 to the extent that it permits a trial court to avoid ruling on evidentiary objections, and encouraged attorneys to limit their evidentiary objections to those that "really count."

I can't think of a more practical result.

 

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Jul17

Spoliation as Evidence of Guilt

Posted on July 17, 2010 by Jeff Huron

In determining what inferences to draw from the evidence against a party, the jury is permitted to consider a party's willful suppression of evidence. Evid. Code Section 413. In Thor v. Boska (2nd Dist. 1974) 38 Cal.App.3d 558, a doctor, who was sued for malpractice, failed to produce his original charts. His explanation was that, after copying the records verbatim to make them more legible, he must have thrown away the originals. The fact that "the defendant was unable to produce his original clinical record concerning his treatment of the plaintiff after he had been charged with malpractice, created a strong inference of consciousness of guilt on his part."

Today, it is increasingly more common for parties to suppress harmful evidence, such as email. If they do, their conduct is admissible at trial. We had a case where the chief executive officer removed back-up tapes of electronic data from the company's safe.  Neither the officer nor the company produced the tapes during discovery. At trial, the officer's removal of the tapes was powerful evidence that helped convince the jury to find fraud and award punitive damages.

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