[author: Cassandra Mougin - Shareholder Pettit Kohn]
On August 10, 2015, Governor Brown signed SB 470, codifying the holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, that evidentiary objections on motions for summary judgment are preserved on appeal whether or not the trial court rules on them. The bill adds the following language to California Code of Civil Procedure section 437c:
(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.
Before Reid and Section 437c(q), the California appellate courts had been split on the question of whether evidentiary objections that were not ruled on were waived on appeal. Some appellate courts held that filing written objections, alone, was sufficient to preserve evidentiary objections for appeal. Other courts of appeal held that parties that filed written objections, but failed to request a ruling at the hearing, had waived the objections. In Reid, the California Supreme Court settled the split, holding that if a party has filed written objections to evidence the court need not rule on each objection at the hearing, in order for the objections to be preserved on appeal. The other portion of the holding from the Reid case—that a court’s statement that it declines to render formal rulings is presumed to be an implied overruling of the objections—was not codified by SB 470.
In Reid, the plaintiff filed an employment discrimination case against his previous employer, Google. Google moved for summary judgment. Google submitted 31 pages of objections, raising more than 175 separate objections to evidence. (Reid, 50 Cal.4th at p. 533). At least 50 of the objections were based simply on “relevance.” (Id.) At the hearing, Google incorporated its written objections, and focused on four items of evidence in particular. (Id.)
In a written order, the trial court granted Google’s motion and stated: “The Court declines to render formal rulings on evidentiary objections. In ruling, the Court relied on competent and admissible evidence pursuant to Biljac Associates v. First Interstate Bank (1990) 218 Cal. App.3d 1410, 1419-1429.” (Id.) This type of ruling has been commonly referred to as a Biljac ruling.
Plaintiff appealed and argued that, because the court did not rule on Google’s objections, those objections had been waived on appeal. Google argued that the Biljac ruling should be a presumption that the objections were sustained. Google also argued that if the Court of Appeal were to presume that the objections were overruled, the Court of Appeal would, in effect, be concluding that the objections were waived. The Court of Appeal refused to hold that the evidentiary objections were waived, but ruled that the trial court’s Biljac ruling is presumed to be an implied overruling of the evidentiary objections. (Id. at 533-534).
The California Supreme Court granted Google’s petition for review to address the preservation of evidentiary objections on appeal. The California Supreme Court held that because Google submitted its evidentiary objections in proper form in writing and orally, all of its objections were preserved on appeal. It also agreed with the Court of Appeal that a Biljac ruling presumes the objections were overruled.
In so holding, the California Supreme Court analyzed the history of the waiver language in CCP 437c. The Supreme Court noted that prior to a 1990 amendment, objections “not made either in writing or orally at the hearing” were deemed waived. (Reid, 50 Cal.4th at p. 529 (quoting Former §437c, subd. (b) as amended by Stats. 1984, ch. 171, §1, pp. 544, 545).) In 1990, the Legislature considered changing this language to “Evidentiary objections not made in writing at least two court days prior to the hearing shall be deemed waived.” (Reid, 50 Cal.4th at p. 529 (quoting Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as introduced Mar. 1, 1990, p. 2.) Ultimately, in 1990, the Legislature changed the language to “Evidentiary objections not made at the hearing shall be deemed waived.” (Reid, 50 Cal.4th at p. 530 (quoting § 437c, subd. (b), as amended by Stats. 1990, Ch. 1561, §2, pp. 7330, 7331, enacting Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990.)
The Court noted that one of the objectives of the 1990 amendment, was to ensure that all evidentiary objections be first made in the trial court and not made for the first time on appeal, and then inferred that when the Legislature deleted “either in writing or orally,” it did not intend to restrict the manner in which objections had to be presented, but simply required that the objections be presented to the trial court, rather than being made for the first time on appeal. (Id. at 530.) The Court reasoned that written objections made before the hearing, as well as oral objections made at the hearing, are deemed made “at the hearing” so that either method of objection avoids waiver. (Id. at 531-532).
The Reid Court also included a practice note, characterizing “innumerable” or “blunderbuss” objections as a “disturbing trend” that could lead to a court reprimanding or even sanctioning counsel for abusive practices, and encouraging parties at the very least to “specify [at the hearing] the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion.” (Id. at 532-533). Thus, even with the addition of Section 437c(q), practitioners should focus on the objections that really count, and raise key objections at the hearing.
