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BY VIVIAN F. WANG EVIDENTLY OBJECTIONABLE Outside of summary judgment or anti-SLAPP motions, there is little guidance for courts and attorneys on evidentiary objections

THE USE OF EVIDENCE in civil motion must expressly rule on all evidentiary objec- burden on courts, as they are the recipients practice in California state court can raise tions and that in the absence of an express of all this potentially superfluous written numerous questions regarding evidentiary ruling, an objection is deemed overruled but material. objections. These include: 1) whether to object preserved for appeal. With motions to strike The solution, however, is not necessarily to an opponent’s evidence, 2) whether to under California’s anti-SLAPP statute, courts obvious. A rule that courts will not entertain respond to an opponent’s objections, 3) what are also obligated to rule on evidentiary evidentiary objections on motions other than is the proper time and manner for submitting objections. those under the summary judgment or anti- any objections or responses (i.e., whether to In other contexts, though, the authorities SLAPP statutes would be simple and clear, do it in writing before the hearing or orally offer little or no guidance on any of these and it would eliminate the burden on parties at the hearing, and whether any written filings questions. This lack of guidance is surprising and courts associated with evidentiary objec- should adhere to a particular format), 4) and problematic. Among other undesirable tions. But such a rule would fail to recognize whether the court is required to expressly effects, it increases the uncertainty of and that decisions on other types of motions too rule on any objections, and 5) what is the the burden on litigants, who may, as a matter should rest on solid evidence and that judges effect on appeal of the trial court’s evidentiary of caution, feel obligated to submit eviden- may not want to sort out evidentiary issues rulings, or its failure to make the same. tiary objections or responses thereto, and without input from the parties. If parties are In the context of summary judgment take an overinclusive approach that courts motions, the Code of Civil Procedure, the have criticized in the summary judgment Vivian F. Wang practices business litigation at California Rules of Court, case law, and sec- context. Similarly, a litigant may, as a matter Berliner Cohen, LLP in San Jose. She represented ondary authorities collectively provide an - of caution, feel obligated to advance its posi- the plaintiffs in ValleyOne Investment, LLC v. swers to a number of these questions. There tion in writing in a prehearing filing, when Sincere Escrow and Sorrento Pavilion, LLC v. East is clear enough guidance as to how and when doing so orally at the hearing could ade- West Bank. She gratefully acknowledges Jason to make and respond to evidentiary objec- quately preserve the position at far less Hom and John Keith for their support in the writing tions. Also, it is well settled that the court expense. This situation also increases the of this article.

Los Angeles Lawyer September 2015 25 to be entitled to make and respond to evi- anti-SLAPP law, codified at Section 425.16 ticular occasion illustrates how risky it can dentiary objections, there should be specific of the Code of Civil Procedure. Under that be for counsel to forego written objections rules, as with summary judgment, governing statute, a defendant who believes he or she or responses. Doing so can lead to an infer- how and when to do so. has been sued for an act “in furtherance of ence (by counsel, counsel’s partners or supe- It would pose an undue burden on courts the…right of petition or free speech under riors, or the client) that counsel fell short of to extend their obligation to rule on eviden- the U.S. Constitution or the California Con- the duty to be a zealous advocate, especially tiary objections in the summary judgment stitution in connection with a public issue” if the outcome is unfavorable. Thus, the lack and anti-SLAPP contexts to all civil motions. may file a special motion to strike the offend- of guiding authority on evidentiary objections The best solution in this regard may be a ing causes of action.7 On such motion, the outside of the summary judgment and anti- compromise approach that draws from a defendant must first “‘make a threshold SLAPP contexts has undesirable effects. For recent proposed amendment to California’s showing that the challenged cause of action one, it encourages litigants to follow an summary judgment statute, Section 437c of is one arising from protected activity.’”8 If overly cautious approach by filing written the Code of Civil Procedure, which would he or she does so, the burden shifts to the objections and responses whenever they can require courts to rule only on objections to plaintiff, who, to defeat the motion, must afford to do so. This often wastes litigant evidence that are material to the disposition demonstrate a “‘probability of prevailing on resources, as there is evidence that evidentiary of the motion. Courts should be encourag - the claim.’”9 In Gallant v. City of Carson, objections rarely affect a court’s ultimate ed to do the same for other kinds of civil the court held that cases concerning eviden- decision.18 Reid indicates as much in the motions. tiary objections “in the summary judgment summary judgment context, condemning context…also govern[] anti-SLAPP motions the trend of making “‘blunderbuss objections Summary Judgment and Anti-SLAPP because the two types of proceedings have to virtually every item of evidence submit- Motions similar standards.”10 That is, the trial court ted’”19 that has turned summary judgment When contemplating what the rules govern- must “evaluate[] the merits of the lawsuit proceedings into an “‘all-out artillery ex - ing evidentiary objections might look like, using a summary-judgment-like procedure change.’”20 Reid approvingly cites amicus the natural starting point is the existing body at an early stage of the litigation.’”11 No curiae comments that “‘[i]n the real world… of law governing evidentiary objections on published case appears to address whether most evidentiary objections do not matter summary judgment. Section 437c(b)(5) and parties must follow Rules 3.1352 and 3.1354 very much to the…decision,’”21 and “‘[a]ll (d) provide that objections must be made with anti-SLAPP motions, but at least one too often trial courts face a flood of eviden- “at the hearing” or are deemed waived. Rule practice guide12 and one unpublished appel- tiary objections, objections that may be ad - 3.1352 of the California Rules of Court pro- late decision13 indicate those rules are applic- dressed to matters that are tangential at best, vides that a party can make evidentiary objec- able. at least given the trial court’s view of the tions either in writing or at the hearing as critical issues or evidence.’”22 A recent report Other Types of Motions long as a court reporter is present.1 In Reid jointly published by three committees of the v. Google, Inc., the California Supreme Court Outside the summary judgment and anti- California Judicial Council corroborates confirmed that “written evidentiary objec- SLAPP contexts civil litigators basically are Reid’s point that evidentiary objections are tions made before the hearing, as well as left to speculate about how and when to sub- usually inconsequential. The report states oral objections made at the hearing are mit or respond to evidentiary objections, that “frequently, the number of objections deemed made ‘at the hearing’” under Section whether the court will consider and rule on that pertain to evidence on which a court 437c for purposes of preserving the objection. them, and what it means if the court does relies in determining whether a triable issue “[E]ither method of objection avoids waiver” not do so. As judges from the Santa Clara of fact exists is a small subset of the total on ap peal.2 For written objections, Rule County Superior Court have repeatedly noted number of objections made by the parties.”23 3.1354(a) of the California Rules of Court in their orders, “There is no authority holding According to the report, “many objections supplies deadlines, requiring them to be that the Court must rule on an evidentiary are unnecessary, and that there is no need served and filed “at the same time as the objection made in connection with a motion for rulings on those objections.”24 objecting party’s opposition or reply papers other than a motion for summary judgment In addition to causing parties to incur are served and filed.” Rule 3.1354(b) des - or an anti-SLAPP motion.”14 Appellate opin- needless time and expense, the lack of gov- cribes formatting requirements for written ions confirm that some trial courts decline erning authority on evidentiary objections is objections. Trial courts “must rule expressly” to rule on such objections.15 troublesome for other reasons. It exacerbates on evidentiary objections accompanying sum- However, there is also nothing that pro- existing power imbalances in litigation mary judgment papers.3 Reid holds that hibits trial courts from ruling on objections because it tends to favor deeper-pocketed objections not expressly ruled upon are outside of the summary judgment and anti- parties, who are less likely to balk at the deemed overruled but preserved for appeal.4 SLAPP contexts. Just as there are cases in additional expense that evidentiary sparring Neither the Code of Civil Procedure nor the which trial courts have ignored objections, entails. It also tends to put attorneys litigating California Rules of Court addresses responses there are also cases in which they have ruled in an unfamiliar county at a disadvantage to evidentiary objections in summary judg- on them.16 Indeed, there is anecdotal evidence because they may not be aware of the local ment pro ceedings,5 but Tarle v. Kaiser that in some courtrooms evidentiary objec- bench’s predilections regarding objections. Foundation Health Plan, Inc., holds that “a tions have been considered and granted and The virtually unchecked discretion that trial party who fails to provide some oral or writ- that parties have been deemed to have waived courts currently have in dealing with eviden- ten opposition to objections, in the context the right to make or respond to objections if tiary objections also risks damaging the bar’s of a summary judgment motion, is barred they fail to do so in writing before the perception of the judiciary. Absent clear stan- from challenging the adverse rulings on those hearing.17 dards, whose application could give a court’s objections on appeal.”6 decision the imprimatur at least of impartiality Undesirable Uncertainty The rules governing evidentiary objections if not correctness, counsel are more likely to on summary judgment proceedings also apply That counsel cannot confidently predict how perceive that a court is acting arbitrarily, to special motions to strike under California’s a court will deal with objections on a par- adopting whatever stance on the evidence

26 Los Angeles Lawyer September 2015 MCLE Test No. 249 MCLE Answer Sheet #249 EVIDENTLY OBJECTIONABLE The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Name Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization 1. The California Rules of Court contain deadlines for 12. California’s anti-SLAPP statute allows defendants filing written objections to evidence in any papers sup- who believe they have been sued for an act in further- Address porting or opposing a civil motion. ance of their right of petition or free speech under the City True. U.S. or California Constitution in connection with a False. public issue to file a special motion to strike the offend- State/Zip 2. A party wishing to make an oral objection to evidence ing causes of action. E-mail at the hearing on a summary judgment motion must True. Phone False. ensure that a court reporter is present at the hearing. State Bar # True. 13. When analyzing the merits of a special motion to False. strike a cause of action under California’s anti-SLAPP INSTRUCTIONS FOR OBTAINING MCLE CREDIT statute, the first step is to assess whether the plaintiff 3. A party may file written objections to evidence in 1. Study the MCLE article in this issue. the papers on a motion for summary judgment any has demonstrated a probability of prevailing on the claim. 2. Answer the test questions opposite by marking time before the hearing on the motion. the appropriate boxes below. Each question True. True. has only one answer. Photocopies of this False. False. answer sheet may be submitted; however, this 14. form should not be enlarged or reduced. 4. A trial court need not rule on objections to evidence Cases concerning evidentiary objections in summary 3. Mail the answer sheet and the $20 testing fee in summary judgment papers unless the evidence is judgment proceedings are also applicable to evidentiary ($25 for non-LACBA members) to: material to the disposition of the motion. objections in anti-SLAPP proceedings. True. True. Los Angeles Lawyer False. MCLE Test False. P.O. Box 55020 15. 5. If a trial court does not rule on an objection to evi- Declarations in civil litigation must state that they Los Angeles, CA 90055 are made under penalty of perjury. dence in summary judgment papers, the objection is Make checks payable to Los Angeles Lawyer. presumed overruled. True. False. 4. Within six weeks, Los Angeles Lawyer will True. return your test with the correct answers, a False. 16. The California Judicial Council has recommended rationale for the correct answers, and a certificate verifying the MCLE credit you earned 6. amending the summary judgment statute to state that If a party does not oppose an objection to evidence through this self-assessment activity. in summary judgment papers, but the court does not trial courts need not rule on evidentiary objections in summary judgment proceedings. 5. For future reference, please retain the MCLE rule on the objection, that party may challenge the test materials returned to you. objection on appeal. True. True. False. ANSWERS False. 17. There are no appellate cases showing that trial Mark your answers to the test by checking the appropriate boxes below. Each question has only 7. courts have ruled on evidentiary objections with motions The California Rules of Court require that oppositions one answer. to objections to evidence in summary judgment papers beyond summary judgment motions and anti-SLAPP be made in writing. motions. 1. n True n False True. True. False. False. 2. n True n False 18. 3. True False 8. The California Code of Civil Procedure does not There are appellate cases showing that trial courts n n address how to submit oppositions to objections to have ignored evidentiary objections with motions 4. n True n False beyond summary judgment motions and anti-SLAPP evidence in summary judgment papers. 5. n True n False motions. True. 6. n True n False False. True. False. 7. n True n False 9. The California Rules of Court do not address how 19. 8. n True n False to submit oppositions to objections to evidence in Federal courts have used local rules to specify pro- summary judgment papers. cedures for making evidentiary objections. 9. n True n False True. True. 10. n True n False False. False. 11. n True n False 20. At least one California state court has used local 10. If a party making an objection to evidence in sum- 12. n True n False rules to specify procedures for making evidentiary mary judgment papers does not obtain a ruling from 13. n True n False the trial court on that objection, that party has waived objections. 14. n True n False the objection on appeal. True. True. False. 15. n True n False False. 16. n True n False 11. The California Supreme Court has criticized a trend 17. n True n False of parties submitting excessive evidentiary objections 18. n True n False with summary judgment papers. 19. n True n False True. 20. True False False. n n

Los Angeles Lawyer September 2015 27 happens to be convenient for the outcome courts to make evidentiary rulings on anti- reiterated by Reid.36 Any objection not ruled the court desires for the motion at hand. SLAPP motions is that those motions involve upon would be preserved for appeal;37 under assessing a plaintiff’s probability of prevailing Reid, such objections are presumed over - Potential Solutions on a claim. Yet various other motions call ruled.38 One straightforward response to the current for the same analysis, including motions for One can imagine a principle that takes a lack of guidance on evidentiary objections preliminary injunctions,30 to expunge lis pen- cue from the proposed amendment to Section would be a rule that courts simply will not denses,31 and for prejudgment attachment 437c and encourages, but does not necessarily consider them in connection with motions orders.32 require, trial courts to rule only on material other than summary judgment and anti- Admittedly, unlike summary judgment or objections for civil motions generally. To be SLAPP motions. This approach would elim- anti-SLAPP motions, other motions do not sure, doing so might call on some judges to inate the burden on parties of preparing and have the potential to be case dispositive as a perform more work than they currently do. responding to evidentiary objections and the matter of law. However, depending on the Yet if courts are concerned by such a change, burden on courts of adjudicating them. There circumstances, preliminary injunction or they could promulgate new local rules, general is a colorable argument to support such a attachment proceedings could well be case orders, or policy statements discouraging rule: that “‘judges are excellent sifters of dispositive as a matter of fact. Similarly, when excessive evidentiary objections (such as by proffered materials in support and opposition, it is not economically feasible to pursue cer- imposing numerical or page limits on objec- are capable of giving due weight to whatever tain claims unless they are aggregated as a tions and responses thereto). If parties receive is produced in the record, and, therefore, class action, denial of a motion for class cer- the message that they should be judicious technical evidence rules need not apply.’”25 tification is essentially case dispositive. In with objections to begin with, and it is clear As one judge put it when faced with a slew these instances and others in which a motion’s the trial courts should simply ignore any of evidentiary objections, “‘fighting over outcome will materially affect a lawsuit’s sta- objections that are inconsequential, the addi- comments or statements…as to whether or tus, there should be procedural constraints tional burden may not be great. Conversely, not they’re relevant or…objectionable, you on the introduction of evidence that go a principle assuring trial courts that it is know, this is not a jury for heaven’s sake. beyond the “sifting” powers of the judge.33 acceptable to rule selectively on objections I’m a judge…I can sift through this stuff. … Thus, it would be too blunt a remedy to may actually save other judges some work. You should be able to rely on the court being abolish evidentiary objections for all civil In the current vacuum of law, trial courts able to…eliminate what’s not relevant.’”26 motions. A more nuanced approach would have sometimes ruled on objections that are This approach also might seem especially be to abolish written objections but allow ultimately inconsequential to the outcome attractive given how severely budget con- oral ones. This could substantially reduce on the motion. For example, in Morgan v. straints have hampered courts’ ability to the associated burdens on parties and courts. Wet Seal, the trial court, ruling on a class process civil cases in recent years.27 If, however, the objections are numerous or certification motion, denied all the plaintiffs’ On the other hand, there are significant, complicated, airing them orally for the first objections to the defendant’s evidence, a- and ultimately more persuasive, arguments time at a hearing may unduly extend (even lthough it also noted that it had not relied against simply doing away with evidentiary derail) the hearing, risking that other parties’ on some of the declarations that the plaintiffs objections and rulings. First, motion practice matters would not be heard and that the found objectionable.39 should not be an evidentiary free-for-all that court, having to make decisions on the fly, Encouraging trial courts to rule on sig- relies entirely on the abilities of judges to sift could make mistakes. nificant evidentiary objections is consistent the wheat from the chaff. After all, the system If evidentiary objections, including written with the idea that it is preferable for trial utilizes other mechanisms to ensure a basic ones, should be permissible, the next question courts to explain their orders. One of the level of reliability in evidence supporting civil is whether courts should have to rule on purposes of written opinions is to “commu- motions. For instance, declarations must con- them in all instances. The answer seems to nicate a court’s conclusions and the reasons form with the requirements of Section 2015.5 be no because such a requirement would for them,” and the process of preparing them of the Code of Civil Procedure, whose pur- impose an undue burden on the courts. For should help impose “intellectual discipline pose is to “enhance the reliability of all dec- example, the above-referenced California on the author, requiring the judge to clarify larations used as hearsay evidence by dis- Judicial Council report cites concern by one his or her reasoning and assess the sufficiency closing the sanction for dishonesty”—that research attorney that, with summary judg- of precedential support.”40 Evidentiary issues “perjured statements might trigger prosecu- ment motions alone, “the court is over- could be treated like any other argument in tion under California law.”28 whelmed with work even without having to the parties’ briefs. If they affected a court’s Second, some judges may not want to rule on objections to evidence that, even if rationale in the course of reaching a decision, rely on their own evidentiary sorting abilities, sustained, would have no impact on the it is helpful to the parties, attorneys, other instead subscribing to the view that litigants court’s decision.”34 In that report, the Superior observers, and appellate courts if the trial should not “treat judges as if they were pigs Court of San Diego County also commented: court record indicates as much.41 sniffing for truffles.”29 Third, even if it is “Quite often it only takes a few documents The Need for Procedural Rules true that evidentiary objections usually do for the Court to find a triable issue of fact. not affect the ultimate outcome on a motion, Ruling on objections to evidence not needed Assuming that evidentiary objections are there will be cases in which they do matter. to make that determination is a waste of acceptable in proper doses, parties should not Fourth, evidentiary objections are, with good judicial resources.”35 have to guess about when and how to assert reason, deeply engrained in civil motion prac- In response to these considerations, the or respond to them. The California Rules of tice in a variety of contexts, in which they report recommends amending Section 437c Court could be amended to incorporate for may be just as vital to the adjudicative process to provide that trial courts “need rule only all motions the procedures that now govern as on summary judgment and anti-SLAPP on objections to evidence that is material to summary judgment motions, or some other motions, when objections are not just per- the disposition of the summary judgment set of reasoned and sufficiently clear proce- mitted but required to be ruled upon. By motion,” which would displace their current dures. Rule 5.111(c) already provides for way of illustration, the rationale for requiring obligation to rule on all objections as recently family court proceedings a set of procedures

28 Los Angeles Lawyer September 2015 akin to those governing summary judgment lowing Reid with respect to evidentiary objections). 19 Reid v. Google, 50 Cal. 4th 512, 532 (2010) (quoting motions.42 Local rules could also fill the void 11 Gallant, 128 Cal. App. 4th at 710 (quoting Varian Demps v. San Francisco Hous. Auth., 149 Cal. App. Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005)). 564, 578-79 (2007) (citations omitted). in the current law on a court-by-court basis. 12 See 33 CAL. FORMS OF PLEADING AND PRACTICE— 20 Reid, 50 Cal. 4th at 532 (quoting Mamou v. For example, before it was superseded in 2013 ANNOTATED §376.50[4][b] (2015) (With respect to Trendwest Resorts, Inc., 165 Cal. App. 686, 711-12 by Rule 5.111(c), Local Rule 5.8 of the Family anti-SLAPP motions, “[i]f evidentiary objections exist, (2008)). Division of the Los Angeles County Superior consider preparing written objections to the evidence 21 Reid, 50 Cal. 4th at 532 n.9 (quoting amicus curiae Court set forth procedures for evidentiary to be submitted to the court in a separate document, California Academy of Appellate Lawyers). 22 objections for family court proceedings.43 reply memorandum or both, similar to the manner Reid, 50 Cal. 4th at 532 n.9 (quoting amicus curiae for objecting to evidence in papers submitted on a Association of Southern California Defense Coun sel). Federal courts have also used local rules to summary judgment motion.…” (citing CAL. R. CT. 23 EVIDENTIARY OBJECTIONS, supra note 18, at 2. specify procedures for making evidentiary 3.1352, 3.1354)). 24 Id. objections with summary judgment motions,44 13 See Hilsenrath v. Nixon Peabody LLP, Nos. 25 Linda S. Mullenix, Putting Proponents to Their since the Federal Rules of Civil Procedure, A121271, A121978, 2009 Cal. App. Unpub. LEXIS Proof: Evidentiary Rules at Class Certification, 82 unlike the California Rules of Court, do not 8693, at *26 n.6 (Ct. App. Oct. 30, 2009) (approving GEO. WASH. L. REV. 606, 643 (2014) [hereinafter of defendant’s adherence to Rule of Court 3.1354 in Mullenix] (citing Frederick Schauer, On the Supposed contain any provisions for doing so.45 the context of an anti-SLAPP motion and noting that Jury-Dependence of Evidence Law, 155 U. PA. L. REV. Attorneys and parties need greater clarity plaintiffs “could have responded to those objections 165, 188 (2006)). about whether, when, and how to submit at the hearing”); but see Greenstein v. Greif Co., No. 26 In re Marriage of Davenport, 194 Cal. App. 4th and respond to evidentiary objections on B200962, 2009 Cal. App. Unpub. LEXIS 427, at *9 1507, 1521 (2011) (quoting Hon. Cerena Wong, Trial civil motions other than summary judgment (Ct. App. Jan. 20, 2009) (“On its face, rule 3.1354 Transcript (Oct. 29, 2008)). applies only to evidentiary objections filed in connection 27 See, e.g., Hon. Tani Cantil-Sakauye, Chief Justice, and anti-SLAPP motions. In the present void with a motion for summary judgment or summary California Supreme Court, State of the Judiciary of authority on this issue, courts act incon- adjudication, rather than a special motion to strike Address (Mar. 17, 2014). sistently and unpredictably, and both party under section 425.16.”). 28 Kulshrestha v. First Union Commercial Corp., 33 and judicial resources are wasted. In light 14 See, e.g., Longview Int’l Inc. v. Fausto, No. 1-13- Cal. 4th 601, 606 (2004). of various competing factors, including the CV-251541 (Santa Clara Cnty. Super. Ct. Oct. 16, 29 Dzung Chu v. Oracle Corp., 627 F. 3d 376, 386 need for reliable evidence and courts’ heavy 2014) (order denying motion for leave to file cross- (9th Cir. 2010) (citing United States v. Dunkel, 927 complaint at 1); Shepard v. Frankel, No. 1-13-CV- F. 2d 955, 956 (7th Cir. 1991)). workloads, objections should not simply be 257934 (Santa Clara Cnty. Super. Ct. June 9, 2014) 30 See, e.g., White v. Davis, 30 Cal. 4th 528, 554 abolished, but neither should courts always (order on demurrer at 2); Sorrento Pavilion, LLC v. (2003). be required to rule on them. Trial courts East West Bank, No. 1-12-CV-233122 (Santa Clara 31 CODE CIV. PROC. §405.32 (A lis pendens “shall… should be encouraged to address them when Cnty. Super. Ct. May 15, 2014) (discovery order at 2 be expunged if the court finds that the claimant has they matter. Such a principle leaves the door n.4); Department of Fair Employment and Housing not established by a preponderance of the evidence v. Hawaiian Airlines, Inc., No. 1-13-CV-243227 (Santa the probably validity of the real property claim” on open for cases that may incrementally expand Clara Cnty. Super. Ct. Apr. 15, 2014) (discovery order which the lis pendens is based.). the requirement for evidentiary rulings in at 7). 32 CODE CIV. PROC. §484.090; see also Hobbs v. limited, specific situations beyond summary 15 See, e.g., Ashburn v. AIG Fin. Advisors, Inc., 234 Weiss, 73 Cal. App. 4th 76, 80 (1999) (“Although it judgment and anti-SLAPP motions. And, if Cal. App. 4th 79, 89, 90 (2015) (The trial court is ‘preferable’ to make evidentiary objections in writing evidentiary objections are not going to be declined to rule on “14 pages of objections to evi- before the hearing, it is not mandatory to do so.… dence.”); Bradley v. Networkers Int’l, 211 Cal. App. ‘Evidentiary objections to declarations or exhibits abolished, local rules or rules of court should 4th 1129, 1141 (2012) (trial court declined to rule on offered by the opposition may be presented orally at clearly articulate deadlines for filing objec- the defendant’s numerous evidentiary objections span- the hearing.’” (quoting 1 AHART, CAL. PRACTICE GUIDE: tions and responses in writing and specify ning 137 pages); Gorman v. Tassajara Dev. Corp., ENFORCING JUDGMENTSAND DEBTS ¶ 4:272, 4-58 whether they are permissible at oral argu- 178 Cal. App. 4th 44, 68 (2009) (trial court did not (1997))). ment. At bottom, parties deserve a better rule on evidentiary objections in connection with 33 See, e.g., Mullenix, supra note 25, at 609-12, 643- motion for attorney fees and costs); Laborers Pac. Sw. 44. sense of what the court expects of them and Reg’l Org. Coal. v. Gomez, No. D065958, 2015 Cal. 34 See EVIDENTIARY OBJECTIONS, supra note 18, at 2. what they can expect from the court when App. Unpub. LEXIS 1971, at *12 n.9 (Cal. Ct. App. 35 Id. at 4. it comes to an issue that arises as often as Mar. 20, 2015) (trial court declined to rule on evi- 36 Id. at 12; see also Reid v. Google, Inc., 50 Cal. 4th this one does. n dentiary objections in connection with motion for pre- 512, 532 (2010) (citing Vineyard Springs Estates v. liminary injunction); Odell v. Ferrari, No. H034385, Superior Ct., 120 Cal. App. 4th 633, 642-43 (2004) 2010 Cal. App. Unpub. LEXIS 8022, at *3 (Cal. Ct. and Tarle v. Kaiser Found. Health Plan, Inc., 206 Cal. 1 CAL. R. CT. 3.1352. App. Oct. 8, 2010) (trial court did not rule on evi- App. 4th 219, 227 (2012) (citing Reid, 50 Cal. 4th at 2 Reid v. Google, Inc., 50 Cal. 4th 512, 531-32 (2010). dentiary objections in connection with motion for pre- 532)) On August 10, SB 470 was signed into law. It 3 Id. (citing Vineyard Springs Estates v. Superior Ct., liminary injunction); In re Providian Credit Card Cases, specifies which evidentiary objections a court must 120 Cal. App. 4th 633, 642-43 (2004)). No. A097482, 2003 Cal. App. Unpub. LEXIS 12000, resolve when ruling on a motion for summary judgment 4 Reid, 50 Cal. 4th at 534. at *19 n.7 (Cal. Ct. App. Dec. 22, 2003) (trial court or summary adjudication. 5 See Tarle v. Kaiser Found. Health Plan, Inc., 206 did not rule on evidentiary objections in connection 37 See EVIDENTIARY OBJECTIONS, supra note 18, at 7. Cal. App. 4th 219, 227 (2012) (noting that until that with motion for attorney fees). 38 Reid, 50 Cal. 4th at 534; but see Brief of California decision, that law seems to have “paid little attention 16 See, e.g., Calvo Fisher & Jacob LLP v. Lujan, 234 Academy of Appellate Lawyers at 18, Reid v. Google, to the duties, if any, imposed on a party opposing the Cal. App. 4th 608, 618 (2015) (trial court overruled Inc., No. S158965 (Cal. July 16, 2008). evidentiary objections,” and “the governing statute evidentiary objections in connection with motion for 39 Morgan v. Wet Seal, Inc., 210 Cal. App. 4th 1341, (Code Civ. Proc., §437c) and rules of court (Cal. Rules attorney fees); Carolina Cas. Ins. Co. v. L.M. Ross 1353 (2012). of Court, rules 3.1350-3.1354) do not even provide Law Group, LLP, 212 Cal. App. 4th 1181, 1190-91 40 FEDERAL JUDICIAL CENTER, JUDICIAL WRITING MANUAL for a written opposition to written objections.”). (2012) (trial court sustained evidentiary objections in 1 (1991). 6 Tarle, 206 Cal. App. 4th at 226. connection with motion to amend jugdgment). 41 See, e.g., Mullenix, supra note 25, at 643. 7 CODE CIV. PROC. §425.16(b)(1); see also Jarrow 17 See, e.g., ValleyOne Inv., LLC v. Sincere Escrow, 42 See CAL. R. CT. 5.111(c). Form ulas, Inc. v. LaMarche, 31 Cal. 4th 728, 733 No. 1-13-CV-255535 (Santa Clara Cnty. Super. Ct. 43 Former L.A. SUPER. CT. LOCAL R. 5.8. (repealed (2003). Sept. 16, 2014) (transcript of proceedings at 6:18- 2013). 8 Jarrow Formulas, 31 Cal. 4th at 733 (quoting Equilon 7:12). 44 See, e.g., D. OR. LOCAL R. 56; W. DIST. TENN. Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 18 See JUDICIAL COUNCILOF CALIFORNIA, JUDICIAL LOCAL R. 56.1(e), available at https://www.tnwd (2002)). COUNCIL-SPONSORED LEGISLATION: EVIDENTIARY .uscourts.gov /local-court-rules-plans.php. 9 Id. OBJECTIONS IN SUMMARY JUDGMENT PROCEEDINGS 2 45 See Michael D. Kibler & Michael G. Freedman, 10 Gallant v. City of Carson, 128 Cal. App. 4th 705, (Dec. 12, 2014), available at http://www.courts.ca.gov New Forum for Objections Emerges, THE RECORDER 710 (2005); see also Zucchet v. Galardi, 229 Cal. [hereinafter EVIDENTIARY OBJECTIONS]. (Feb. 17, 2011), at 2. App. 4th 1466, 1480 n.7 (2014) (anti-SLAPP case fol-

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