[Note: Subsequent to this post, the Court of Appeal refiled its decision after rehearing and ordered it not be published. See, "Court 'Unpublishes' Summary Judgment Case," posted July 2, 2012.]
A party who does not oppose objections to evidence submitted on a motion for summary judgment may not claim on appeal that the court's ruling sustaining the objections was error, said the Second District Court of Appeal in Tarle v. Kaiser Foundation Health Plan, Inc. (May 22, 2012, B224739), __ Cal.App.4th __ [2012 DJDAR 6690].
In an action for employment discrimination, defendants objected to evidence submitted by plaintiff in opposition to defendants' motion for summary judgment. The court sustained all but 13 of the objections and granted the motion. On appeal, plaintiff challenged the court's ruling on the objections, arguing that defendants objected to evidence that they themselves relied upon, that the objections failed to specify adequate reasons and that many of the objections were frivolous.
The court of appeal held that plaintiff was barred from asserting her claim of error because she failed to provide any oral or written opposition to the objections in the trial court. While it may be unjust for an appellate court to uphold a summary judgment based on erroneous evidentiary rulings, "[w]e believe, however, that it is equally unjust for a party to lead a trial court to make an erroneous ruling...by failing to suggest to the court a basis on which the evidence is admissible, and then raise the argument for the first time on appeal."
Opposition may be made in several ways, said the court. If there is adequate time, a written opposition may be filed. If not, a party may request a continuance, which "we are confident that trial courts will grant...where properly sought." Opposition may also be made orally at the hearing or, if a party anticipates an objection, at the time the evidence is submitted. Where a party raises numerous inconsequential objections, it is incumbent on the party presenting the evidence to challenge the objections as burdensome and to request a ruling "requiring the opposing party to exercise restraint."
Because "restraint" was a concept foreign to both sides in this case, the court reversed the judgment despite finding that the claim of error was waived by plaintiff. In the unpublished portion of its decision the court found that plaintiff's failure to oppose the objections was due, in part, to defendants having made numerous overbroad objections which they should not have made. These numerous objections were due, in part, to plaintiff's offering of over 750 pages of evidence, much of which was inadmissible. Plaintiff's oversubmission of evidence was caused, in part, by defendants' separate statement of undisputed material facts, which included many items that were neither material nor facts. Since the general rule is that a party should be given the opportunity to cure any failure to comply with the law or rules on summary judgment, the matter was remanded to allow the defendants to file a "new and properly prepared" motion and for any further proceedings.