• Announcements,  Legal Writing,  Summary Judgment,  Summary Judgment and Summary Adjudication,  Waiver of Issues

    SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

    August 11, 2015

    On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.…

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  • Standard of Review,  Summary Judgment,  Waiver of Issues

    Appellate lessons abound in case involving a creative but dubious argument on how a tentative ruling should affect appellate review

    October 7, 2013

    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…

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  • Attorneys,  California Procedure,  Summary Judgment

    Falling on your 473(b) sword only gets you so far

    September 21, 2013

    Oddly enough, this point is made in a case where no one actually fell on their sword. The title of this post comes from my nickname for the mandatory relief provision in  Code of Civil Procedure section 473, subdivision (b) (my emphasis): Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry…

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  • California Procedure,  Summary Judgment

    “A Sadistic Urge to Torment Lawyers”

    August 21, 2008

    Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s. In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e));…

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  • Appellate Procedure,  New Trials,  Summary Judgment,  Waiver of Issues

    Appellate Surprises

    April 1, 2008

    Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point. My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly…

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  • Constitutional Law,  Judgment,  Jury Trial,  Summary Judgment,  Summary Judgment

    Is Summary Judgment Unconstitutional?

    March 24, 2008

    That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt: While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is…

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  • California Procedure,  New Trials,  Summary Judgment,  Summary Judgment

    New Trial Motions after Summary Judgment

    March 20, 2008

    Can you move for a new trial when your case was disposed of by summary judgment?  This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial? But the answer is “yes.” A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment. Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its…

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  • California Procedure,  Evidence,  Summary Judgment,  Waiver of Issues

    Preserving Evidentiary Objections for Appeal from a Summary Judgment

    February 1, 2008

    Last Friday, the California Supreme Court granted review in Reid v. Google, Inc., case no. S158965. The Supreme Court states the following as one of the issues for review: “Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?” Until now, the answer has generally been “no.” That’s a rule that has always rankled me because securing a ruling can be out of the objecting party’s hands. No matter how much prodding one does, the court may fail to rule. Tom Caso at the Opening Brief pointed out this likelihood last October, when he covered a series of decisions creating a conflict…

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  • California Procedure,  Judgment,  Judgment,  Jurisdiction,  Summary Judgment,  Summary Judgment

    Potentially Void Judgment Reversed on the Merits

    November 19, 2007

    Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and…

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