Last year, I wrote about a dubious but creative argument by a respondent that a party’s submission to a tentative ruling on a motion forfeited that party’s right to challenge the motion ruling on appeal. As you might remember, that went nowhere.
The latest creative (and dubious) use on appeal of a tentative ruling — again unsuccessful — comes in Meddock v. County of Yolo, case no. C070262 (3d Dist., filed Sept. 10, 2013, ordered published October 4, 2013). Meddock appealed from a summary judgment for the defendant. His argument on how the tentative ruling on the defendant’s summary judgment motion should play into the appellate court’s analysis, and the court’s rejection of that argument, appear in footnote 4 of the opinion:
Quoting the generality that “doubts” about summary judgment should be resolved against granting it (see, e.g., Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502 (Hamburg)) and noting that the tentative ruling was in his favor, Meddock asserts the trial court must have had doubts, and therefore summary judgment was improper. Meddock cites no authority to support this argument. To agree with his argument would defeat the purpose of tentative rulings, that is, to focus the parties on the dispositive issues before the court (see Younger, Cal. Motions (2011–2012) Tentative Rulings, § 4.53, p. 132) and would preclude us from exercising our independent review to determine whether triable issues of fact exist. (See Hamburg, supra, 116 Cal.App.4th at pp. 502–503.) Moreover, the theory on which the tentative ruling was based — that the pavement contributed to the accident — has been abandoned by Meddock, as we have explained ante.
To my mind, the court should have given more emphasis to the point that the appellant’s argument is inconsistent with the independent review of a summary judgment. It does make the point, noting that accepting the appellant’s argument “would preclude us from exercising our independent review to determine whether triable issues of fact exist” — another way of saying that the trial court’s doubts are irrelevant because the trial court’s exercise of discretion is not at issue in the independent review afforded a summary judgment — but it is a shame to see the point buried in the middle of the footnote. As correct as the other points in the footnote may be, they are just gravy.
The other appellate lessons in this case have nothing to do with the trial court’s tentative ruling, but it is unusual to see so many strung together in one case:
- Make it or waive it. Meddock had multiple arguments he could have made in opposition to summary judgment, but explicitly disclaimed several at the summary judgment hearing and made no attempt to argue them on appeal, so they were deemed abandoned.
- Watch what you concede on a summary judgment motion. Parties sometimes concede facts on summary judgment knowing that the concession will not bind them at trial. But why do so when the moving party fails to provide supporting evidence for them? Here, the decision notes that both sides made unsupported factual assertions, but the court accepted them as true since the parties agreed on them.
- Keep your standards of review straight. Appellant wasn’t the only party to advance an argument inconsistent with the standard of review. The respondent argued that evidentiary gaps in the record must be construed in its favor. This argument apparently relied on the general rule that an appellate court “must draw reasonable evidentiary inferences in favor of the judgment,” but that rule has no application in the independent review afforded a summary judgment.