Handling Objections in Motions for Summary Judgment

For attorneys who have heard me talk about motions for summary judgment, my number one tip is to get a ruling on your objections! In the midst of argument, attorneys often forget to ask the court for rulings. Sometimes, even when they do, the court may ignore them. Getting a ruling helps to protect the record on appeal.

Here's a secret: appellate attorneys love appeals from summary judgments! There are several reasons for this:

• Usually the record is not that large and the issues are limited.


• There is a better chance for reversal because the courts will carefully scrutinize the termination of a case that deprives a party of a trial on the merits.


• You don't have to worry about a jury making a factual determination or the trial court exercising its discretion.


• The standard of review for summary judgments is an independent review, meaning the Court of Appeal will review the record as if the trial court never existed.

Well, except for those pesky objections. If you fail to get a ruling, you may have waived the objection. Oops, there goes a point on appeal! That means the evidence is considered admitted for purposes of appeal. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 151.)

Sometimes you have to plead and beg to get rulings. We attorneys can get quite creative that way, even to the point of submitting a written notice of ruling on objections with blanks so the judge can check "overruled" or "sustained." Don't rely on the court's statement that it will only consider admissible evidence because it is viewed as an implied overruling of any objection not specifically sustained. (Id. at 151.) And if your begging gets you nowhere, you still have created a record showing that your attempts were futile. (Parkview Villas Ass'n v. State Farm Fire and Cas. Co. (2006) 133 Cal.App.4th 1197, 1217.)

In Calderon v. Glick (2005) 131 Cal.App.4th 224, the court held that when a party fails to obtain rulings on objections to evidence in a motion for summary judgment, the objections are waived and not preserved for appeal. (Id. at p. 234.) That holding seemed to reflect the traditional treatment of the failure to obtain rulings on objections.

Then along came Reid v. Google, Inc. (2007) 66 Cal.Rptr.3d 744, which concluded that C.C.P. sec. 473c(c) does not require express rulings. Nor does the statute provide that if you fail to obtain express rulings, you forfeit your objections on appeal. The court held that if there is no express ruling, then its failure to rule "effects an implied overruling of all objections, which are therefore preserved for appeal." (Id. at p. 1357.)

Possibly in an attempt to clarify the issue, the California Supreme Court granted review on January 30, 2008 and Reid v. Google, Inc. can no longer be cited as authority. Until the issue is finally resolved, I will continue to press attorneys to get express rulings on objections. If you have a lot of objections - not boilerplate ones - try to press for rulings on your most important objections or come up with a creative scorecard that makes it easy for the trial court to make its rulings.

Comments

[Terry Nova]

LOVE your blog, thanks for entertaining me
Hope there will be more posts soon
regards, terry
ps - sorry im not that good in writing in english because I came from europe - but i understand a lot