• Appellate Procedure,  Discovery,  Evidence,  Standard of Review

    Sometimes the standard of review is better than you might first think

    Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (independent) standard of review, in which the court of appeal decides the issue without any deference to the trial court. The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross…

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

    Preserving Evidentiary Objections for Appeal from a Summary Judgment

    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…

  • Costs,  Expert Witnesses

    More on California’s Private Attorney General Statute

    This post at The UCL Practitioner notes an article about a case being argued today in the California Supreme Court (Olson v. Automobile Club of Southern California, no. S143999) addressing whether expert witness fees are recoverable under the state’s private attorney general statute, Code of Civil Procedure section 1021.5. If the private AG statute interests you generally, make sure you didn’t miss this post from yesterday, which appears immediately below this one on the home page.

  • California Procedure,  California Supreme Court,  Evidence,  Expert Witnesses,  Torts

    Supreme Court Gets Rid of Conflicts by Dismissing Case

    Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete. The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants. The Supreme Court’s actual order is not posted as a…

  • California Procedure,  Discovery,  Ethics,  Evidence,  Privilege

    Privilege within the Company

    Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged? I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up. The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct…

  • Evidence,  Hearsay,  Statutory Construction

    Hearsay Admissibility Conditions Blend Into Each Other

    A hearsay statement regarding the infliction or threat of physical injury upon the declarant is admissible if it meets the conditions of Evidence Code section 1370, subdivision (a), which include that the statement was made “at or near the time” of the infliction or threat and that the statement was made under circumstances that would indicate its trustworthiness. In People v. Quitiquit, case no. D050385 (4th Dist. Sept. 12, 2007), the Court of Appeal says that a declarant’s statements that the defendant had caused her neck injury seven weeks earlier were not made “at or near” the time of infliction. Thus, the statements were improperly admitted, and Quitiquit’s conviction for…