Litigation – Don’t wait until appeal to respond to evidentiary objections

1 Jun

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, May 31, 2012 6:56 AM
To: Charles Cox
Subject: Litigation – Don’t wait until appeal to respond to evidentiary objections

Don’t wait until appeal to respond to your opponent’s evidentiary objections

· Duane Morris LLP

· Paul J. Killion

· May 25 2012

California appellate courts continue to work through application of Reid v. Google (2010) 50 Cal.4th 512 to evidentiary objections raised in summary judgment proceedings. For those facing this issue—either in the trial court or on appeal—a new decision by Division Three of the Second District is a must read. (Tarle v. Kaiser Foundation Health Plan Inc. (2nd Dist., Div. 3, May 22, 2012 No. B224739) __Cal.App.4th__.)

The Tarle decision addressed the question “whether, in the context of a summary judgment motion, a party must provide the trial court with [an] opposition to an opponent’s objections or be barred from challenging on appeal the trial court’s order sustaining the objections.” The case arose out of an employment discrimination suit. In response to the employer’s summary judgment motion, the plaintiff submitted 750 pages of evidence, which was met by 200 pages of objections from the employer, comprised of 335 separate objections. The plaintiff did not file any opposition to the objections or request a continuance to do so. At the hearing, the trial court sustained all but 13 of the employer’s objections and granted summary judgment.

On appeal, the plaintiff tried to challenge the objections for the first time, but was rebuffed by the Court of Appeal. While the trial court was required under Reid v. Google to rule on each objection, the opponent was not “free to remain silent and then challenge the adverse ruling on appeal.” Ultimately, because of other issues surrounding the evidence, the Tarle judgment was reversed and remanded. But the Court’s holding as to an opponent’s duty to respond to objections is worth noting, particularly because it provides several practical tips for preserving the appellate record post-Reid v. Google.

First, a party faced with written objections must respond—preferably in writing, but at minimum orally at the hearing (and on the record)—or they lose their right to challenge any subsequent adverse ruling on appeal.

Second, if there is not enough time to respond to the objections—which are typically submitted with reply papers—or if the objections are too overwhelming in number, request a continuance to respond. “[W]e are confident that trial courts will grant parties reasonable continuances to allow written oppositions to be filed, where properly sought.”

Third, if the objections truly are overwhelming to the point of harassment, “the proper course of action is to seek trial court intervention at that time, and obtain a ruling requiring the opposing party to exercise restraint.”

Waiting until appeal to raise responses to written objections will not work after Tarle.

Cal.App.2nd-Tarle v. Kaiser Foundation et al.pdf
Cal.4th-Reid v. Google.pdf

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