This installment will discuss evidentiary issues in summary judgment motion practice.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

Although sometimes honored more in the breach than in the observance, the rules of evidence apply in summary judgment motion practice. Hence, a moving party must make sure that the motion is accompanied by admissible evidence establishing that party's entitlement to the relief sought. Similarly, the party opposing the motion must make sure to present admissible evidence that creates a triable issue of material fact. Assuming that the moving party has met its burden, presenting only inadmissible evidence in opposition will result in the motion being granted. See Martin v. Johnson (1979) 88 Cal.App.3d 595 (defendant's motion for summary judgment granted after trial court sustained objections to evidence presented by plaintiff in opposition).

A common mistake is the failure to lay a proper foundation for documents that are submitted as evidence. An attorney's declaration is usually insufficient, unless counsel is able to show personal knowledge of the authenticating facts. See Cullincini v. Deming (1975) 53 Cal.App.3d 908, 914. The declarant must state facts establishing that he/she has personal knowledge sufficient to authenticate the document. Code of Civil Procedure section 437c(d). The document itself must contain admissible evidence. Id. For example, it does little good to authenticate a document that consists entirely of inadmissible hearsay.

Another common mistake is to submit declarations containing only conclusionary statements. Bear in mind that a declaration must contain evidentiary facts and not simply conclusions. See Hoover Community Hotel Development Corp. v. Thompson (1985) 167 Cal.App.3d 1130, 1136-1137. For example, a declaration that states that an employee "was not acting in the course and scope of employment" presents an inadmissible opinion or conclusion. See McIvor v. Savage (1963) 220 Cal.App.2d 128, 134.

Expert opinion declarations must set forth the declarant's expertise, the matters that were relied upon in reaching the opinion, facts showing such matters are those upon which other experts may reasonably rely, and other bases for the expert's opinion. See Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718. Expert declarations that fail to satisfy these foundational requirements are inadmissible. Kelley v. Trunk (1998) 66 Cal.App.4th 519.

Counsel must make sure that the declaration contains the proper jurat, e.g., "I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct" followed by a date and signature. CCP section 2015.5. A declaration containing that language may be signed anywhere and still be admissible. This is not true with the alternative form of jurat, e.g., "I declare under penalty of perjury that the foregoing is true and correct," followed by a date, place where signed (in California) and signature. This lesson was learned the hard way by the losing party in Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601. In that case the California Supreme Court upheld the striking of a crucial declaration that resulted in summary judgment being imposed against the party who had submitted the declaration. The problem was that the declaration in question was executed outside the state of California and the alternative form of jurat was used. Since the declaration did not contain the words "under the laws of the State of California" the declaration was inadmissible.

In ruling on a summary judgment motion, the Court may also rely on matters that are the subject of judicial notice. Code of Civil Procedure section 437c(b)(1), Evidence Code sections 451, 452. A Court may take judicial notice of the existence of a document in a court file, but it cannot take judicial notice of the truth of facts asserted in such documents unless they are orders, findings of fact, conclusions of law, and judgments. See Bach v. McNelis (1989) 207 Cal.App.3d 852, 865. Inadmissible hearsay does not become admissible just because it is contained in a public record. Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879. Counsel must attach a copy of every document that is the subject of a judicial notice request. California Rules of Court, Rule 323(c).

If a party believes that certain evidence offered in support of, or opposition to, a motion is inadmissible, a proper objection must be timely made. Rule 343 of the California Rules of Court provide that an objecting party must follow one of two procedures: either submit the objections in writing prior to the hearing, or make them orally at the hearing, after first having made arrangements for a court reporter. While written objections that are filed and served no later than 4:30 p.m. on the third court day preceding the hearing are timely (CRC Rule 345), it is to the objecting party's advantage to submit evidentiary objections in writing with the opposition or reply papers. By doing this, the Court will have sufficient time to consider the objections and rule on them prior to ruling on the motion.

A written objection to evidence must state the page and line number of the document to which objection is made, and state the grounds for the objection with the same specificity as a motion to strike evidence made at trial. California Rules of Court, Rule 345. The Court has discretion to disregard objections that do not comply with the rule. A common mistake made is to object to an entire paragraph of a declaration when only one sentence is objectionable. An attorney following this practice runs the risk of the Court overruling the objection. Evidentiary objec tions not made at or before the hearing are deemed waived. Code of Civil Procedure section 437c(b).

The consequences of failing to make timely proper evidentiary objections are potentially severe. Subsection (c) of Code of Civil Procedure section 437c provides that in ruling on a summary judgment/adjudication motion, "the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court." In other words, in the absence of a proper objection, the court is required "to consider all the evidence set forth in the papers," even that which would have been determined to be inadmissible had a proper objection been made. Query: Does this language preclude the Court from making and sustaining its own objection?

The Court is required to rule on each evidentiary objection. Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633. Any doubt whether a judge in ruling on a summary judgment motion could simply say that he/she was relying only on admissible evidence instead of ruling on each objection to evidence (compare Biljac Associates v. First Interstate Bank, 218 Cal.App.3d 1410, 1419-1420 to Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235-238) has now been resolved - at least in the Third Appellate District - in favor of the latter.

Although an appellate court's review of a summary judgment motion is de novo, the Court in Vineyard Springs Estates held that the trial court has a mandatory duty to rule on evidentiary objections. This duty may be enforced by a petition for a writ of mandate filed in the appellate court seeking an order to compel the trial court to rule on evidentiary objections. However, it is this judge's view that if the Court determines that the moving party has not met its burden and denies the motion on that ground, it need not rule on the moving parties' objections to the evidence presented in the opposition papers, since the burden never shifted to the other side.

Counsel must remember that objections go only to evidence, not to separate statements of undisputed facts or to argument. Objections made to undisputed facts or argument will be disregarded and not ruled upon. The objecting party must make certain that the objection is to the evidence cited in support of the undisputed fact. In making objections, bear in mind that quality is more important than quantity. Avoid objections that go only to the weight and not the admissibility of the item of evidence.

March / April 2006