Responding to objections made by the opposing party

When you are trying to admit evidence during trial, and the other side wants to keep it out and the trial court is leaning or has ruled in favor of exclusion, then you have to respond with an offer of proof.  You need to let the trial and appellate courts know what the evidence might reveal and how important it is to your case.

The offer of proof shows what the evidence would have been, who the witness is, and to what issue it is relevant.  “Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court,” unless the court has clearly stated it is excluding an entire area of evidence.  (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142; Evidence Code § 354 [the offer of proof should include “the substance, purpose, and relevance of the excluded evidence . . .”].) “Merely setting forth the substance of facts to be proved does not constitute compliance with Evidence Code section 354, subdivision (a).”  (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168 [The offer of proof should include the specific testimony to be elicited, its purpose, and the person giving the testimony.]

A judgment cannot be set aside on this ground unless “the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means (Evid. Code, § 354, subd. (a).)”  (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.)  However, if an entire class of evidence has been declared inadmissible or the trial court has indicated it will not receive evidence on a particular issue, then an offer of proof is not a prerequisite to raising the question on appeal, and the offer, if made by counsel, may be “broad and general.”  (Pacific Gas & Electric Co. v. Zuckerman, supra, at p. 1142.)

Obtaining a ruling on objections

You’ve made your objections but you can’t stop there.  You must also obtain a ruling on your objections from the trial court. (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784.)  During the hearing, it’s easy to get lost in discussions with the court and opposing counsel, and quite often under these circumstances, a ruling on an objection will be forgotten.

This problem frequently arises in connection with summary judgment motions.  At the hearing on the motion, make sure the trial court rules on your objections.  If you have made numerous objections, figure out which ones are really important and secure rulings on them.  If not, your objections will be deemed waived. (Code of Civil Procedure § 437c(b)(5), (c) and (d); see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540.)  The failure to object waives any argument on appeal, except in very limited circumstances, such as jurisdictional grounds or new authority (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1), unless the record shows it would have been futile to continue to object or ask for a ruling.  (City of Long Beach v. Farmers & Merchants Bank of Long Beach, supra, at p. 784.)

Be sure to follow California Rules of Court, Rules 3.1352 and 3.1354 regarding the format for written objections.  It is recommended that your objections be presented in writing and in advance of the hearing date, rather than depending on the presence of a court reporter.  See also Code of Civil Procedure §437c(b)(5), (c) and (d).  Now that the format for making objections and obtaining rulings has changed, it is easy for the trial court to make a ruling just by checking the appropriate space. (CRC rule 3.1354(c).)

The same advice applies to motions in limine and motions to strike.  Get a ruling to your objections.  If you disagree with the court’s ruling, note your objection, otherwise you may have waived any argument that the ruling was incorrect.

How many motions in limine are too many?

Quite often, trial judges complain about counsel who submit a voluminous amount of motions in limine, particularly when the goal is to exclude any unfavorable evidence and prevent the jury from weighing all of the evidence.

In Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, the court explained:

“Generally speaking, in limine motions are disfavored in cases in which they are used not to determine in advance the court’s projected ruling if presented with an evidentiary objection during trial, but instead to serve as a substitute for a dispositive statutory motion. The increasing prevalence of the practice of using in limine motions in this way produces substantial risk of reversal, particularly in situations in which the constitutional rights to jury trial and confrontation are implicated. As we stated in the recent case of Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594, 71 Cal.Rptr.3d 361: ‘[t]he disadvantages of such shortcuts are obvious. They circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe [on] a litigant’s right to a jury trial. (Cal. Const., art. I, § 16.)’ . . . ‘The better practice in nearly every case is to afford the litigant the protections provided by trial or by the statutory processes.’”

(Id. at p. 530.) Under these circumstances, the trial court will simply defer a decision on the motion until the issue comes up during trial, at which time it can deal with the objection.

Trial judges tend to become a bit persnickety when faced with a huge pile of motions in limine, particularly if the motions are clearly boilerplate, form motions. They also see such motions as an attempt to keep out everything unfavorable to the moving party, burying the other side in paper, and creating more opportunities for "billable events." The judge might reserve his or her ruling, believing such motions are often premature, until the opposing party attempts to introduce the evidence during trial.

Attorneys would do well to avoid trying their cases in a motion in limine, filing only those that are really critical to the case. Tailor the motion in limine to the case and avoid the boilerplate. By doing so, you will be enhancing your credibility and quite possibly, your chances of winning the motion.

Where have all the punitive damages gone?

Contesting punitive damages provides fertile ground for appellate practitioners. The challenges could be based on federal constitutional grounds, state grounds, such as an awards based on passion or prejudice, or, as often happens in California, the failure of a plaintiff to present evidence of defendant's financial condition.

At a time when people are becoming more reluctant to serve on juries, particularly dealing with long trials, their dissatisfaction increases when an appellate court takes away an award that they reached after weeks of hearing the evidence. Jurors don't like being accused of reaching their decisions based on passion and prejudice. Then, if the reviewing court steps in to fashion a different (and often lower) remedy, the jurors wonder why they were required to serve at all.

In an article in today's Houston Chronicle, it was reported that a federal judge in Houston reduced a $100 million verdict against British Petroleum (BP) for negligence in connection with the chemical release at its Texas City refinery that sent more than 100 works to the hospital.

The federal judge found that the plaintiffs had failed to show "clear and convincing" evidence of gross negligence, setting aside $100 million in punitive damages. Well, obviously, the evidence was "convincing" to the jury. I am sure the jurors might even argue that they felt the evidence was "clear." This standard allows for some wiggle room because what is clear to one person might only satisfy the preponderance of the evidence standard. And that allows the court to step in and wipe away a victory for plaintiffs and evoke a huge sigh of relief by BP.

This decision sets the stage for the next round of litigation because this first case only dealt with 10 workers. Interestingly enough, this incident in 2007 followed a March 2005 explosion that killed 15 workers and injured many more. BP paid millions to plaintiffs, and a $50 million fine, as well as pleading guilty to a felony violation of the Clean Air Act.

The article also notes that in October, U.S. OSHA proposed $87 million in fines against BP for failing to make safety upgrades required under a settlement agreement with the agency following the 2005 blast. A plaintiff in one action said that BP failed to maintain equipment and provide adequate safety controls. But the judge felt the evidence was still not "clear and convincing."

Some will celebrate this reduction as a victory for companies. Those who do so may believe that individual plaintiffs should not be entitled to punitive damages at all or that the award just seems like a lot of money. Others will despair, as this case is just one of many where judges have reduced punitive damages - ignoring the jury's verdict - until they do nothing to punish wrongdoers. As stated by plaintiff's attorney, the decision gives BP a "free pass" to continue hurting its workers.

I think the Terminator movies had it all wrong, probably for political reasons . . . it's not the rise of the machines that we have to be fearful of; it's the rise of the corporations.

Howell v. Hamilton - An Update

In a unanimous decision, the California Supreme Court granted review in Howell v. Hamilton Meats & Provisions, Case No. S179115.

The Court specified the following issues: "(1) Is the "negotiated rate differential" - the difference between the full billed rate for medical care and the actual amount paid as negotiated between a medical provider and an insurer - a collateral source benefit under the collateral source rule, which allows plaintiff to collect that amount as economic damages, or is the plaintiff limited in economic damages to the amount the medical provider accepts as payment? (2) Did the trial court err in this case when it permitted plaintiff to present the full billed amount of medical charges to the jury but then reduced the jury's award of damages by the negotiated rate differential?"

As one might suspect, a number of groups filed requests for depublication, including the California Capital Insurance Company, the Association of Southern California Defense Counsel, and the American Insurance Association. Consumer Attorneys of California (CAOC) opposed depublication. With a lot of money riding on these issues, one can expect heavy briefing on both sides.