Summary judgment motions: Don't forget to obtain rulings on objections or requests for judicial notice

One of the biggest problems I encounter in dealing with summary judgment motions is the trial attorney's failure to obtain rulings on his or her objections.  As we have discussed, if you make objections but fail to get a ruling on them, you might as well not have made the objections in the first place as your objections will be deemed waived on appeal.  (City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal. App.4th 780, 783.)  As a result, the court will deem the evidence as having been admitted as part of the record on appeal.  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Code of Civil Procedure section 437c(b) and (c).)

It is simply not enough for the judge to state he or she will only consider relevant evidence.  Of course, California Rules of Court, rule 3.1354(b) and (c) makes it easy for the judge to simply check off a ruling, but I would still recommend keeping your objections to a minimum and make sure they really make a difference to your case.

In ruling on the motion for summary judgment, the court must "consider all of the evidence," except that evidence to which objections have been made and sustained, as well as inferences reasonably drawn from that evidence.  (Code of Civil Procedure section 437c(c).)  The court must also view all evidence and inferences "in the light most favorable to the opposing party."  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

The court also has a duty to rule on evidentiary objections, but no one wants to be the attorney arguing that the judge is shirking his or her judicial duties by failing to rule.  "Trial courts have a duty to rule on evidentiary objections.  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.  "A trial court cannot decide whether a motion should be denied or granted until it has first determined what admissible evidence is in play on the motion." (Vineyard Springs Estates, LLC v. Superior Court (2004) 120 Cal.App.4th 633, 642.)

When I first started practicing law, a trial judge might avoid ruling on specific objections and tell you that the court will only consider admissible evidence and will disregard inadmissible evidence.  Sounds smart, I suppose, but it really doesn't give the court of appeal a sufficient record to review.   This rule was examined in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, which rejected the requirement of  express rulings, especially since the court of appeal reviews the matter de novo.  The court in Biljac stated, "[B]eing able to identify particular flaws in the lower court's reasoning has no value because, as appellants themselves note, summary judgment must be upheld if correct on any ground regardless of wrong 'reasons' which may have guided the court . . . More generally, it is presumed on appeal that a judgment has not relied on irrelevant or incompetent evidence."  (Id. at pp. 1419-1420.)

This rule in Biljac has been overruled, superseded and disagreed with so many times that you might has well ignore the holding.  Other reviewing courts treat the lower court's failure to rule on objections as an implied overruling, much the same as if you failed obtain a ruling, so that the evidence becomes part of the record. Even though there are numerous decisions criticizing Biljac, viewing the failure to rule on objections as an abdication of judicial tasks, the California Supreme Court decided to tackle the issue in Reid v. Google, Inc. Case No. S158965 (review granted January 30, 2008).  The Court issued a statement of issues as follows:  "Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?"  The matter was argued and submitted on May 26, 2010 and a decision should be forthcoming in the very near future.  At the heart of this issue is whether evidentiary objections are waived or the trial court is considered to have refused to rule, preserving the objections for appeal.