AN APPEAL TO REASON

Although Code of Civil Procedure section 437c allows for either written or oral objections, without question, I would recommend preparing written objections rather than relying on making them at the hearing. “Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and that which is not.” (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784.) If the judge is going to review the paperwork well in advance of the hearing, wouldn’t you prefer giving the judge your objections at that time, rather than waiting until the last minute? Code of Civil Procedure section 437c(b)(5) provides “Evidentiary objections not made at the hearing shall be deemed waived.” Code of Civil Procedure section 437c(d) requires that objections based on the failure to comply with the requirement that the affidavits or declarations shall be made on personal knowledge “shall be made at the hearing or shall be deemed waived.”

California Rules of Court, Rule 3.1352 provides:

“Any party desiring to make objections to evidence in the papers on a motion for summary judgment must either:

(1)             Submit objections in writing under rule 3.1354; or

(2)             Make arrangements for a court reporter to be present at the hearing.”

While the presence of the court reporter and reporting of the hearing ensures that a record is made of the objection, it still does not give the court advance warning to consider the objections when it is reviewing the motion papers.   If you decide to file written objections with your papers, they must be served or filed at the same time that your opposition or reply are served and filed “[u]nless otherwise excused by the court on a showing of good cause, . . .” (California Rules of Court, rule 3.1354.

The format for written objections can be found in California Rules of Court, rule 3.1354. You should stick to that format without deviation. Just the other day, I was consulted by an attorney who showed me a tentative ruling by a judge who refused to consider written objections because they were not in proper format. One moving party won its motion for summary judgment because the judge sustained objections to the expert's declaration, while the other moving party lost the motion because the objections were not in proper format, and as a consequence, were not considered by the judge. You don't always know whether you have a judge who is a stickler for the rules or one who looks beyond minor procedural errors. Don't take that chance and you will be safe from procedural attacks!

Even though you have the right to make objections, I would recommend that you be judicious in the amount of objections you make. Determine whether it is really important to the issues in the case. Before the new rules required attorneys to submit a proposed order that allowed the judge to check of “overruled” or “sustained,” a voluminous amount of objections always made it difficult for the judge to rule. Now that task is much easier but if you really want to make life easy for the judge, stick to objections that have merit and will ultimately affect the motion.