Evidence Objections

The September 2015 issue of Los Angeles Lawyer, discussed the use of evidence objections in civil motion practice in California state court.

Personal injury and medical malpractice lawyers do not have to wait for a trial to make evidence objections.  In motion practice, there are evidence objections, but figuring out what to object to and when is the key.

In a proposed amendment to California’s summary judgment statute, Section 437c of the Code of Civil Procedure (CCP), courts need to rule only on objections to evidence that are material to the disposition of the motion. The law relating to summary judgment motions can be an example on when to make evidence objections in other types of motions.  CCP Section 437c(b)(5) and (d) state that objections must be made “at the hearing” or are deemed waived.

Rule 3.1352 of the California Rules of Court provides that a party can make evidentiary objections either in writing or at the hearing as long as a court reporter is present.  For written objections, Rule 3.1354(a) of the California Rules of Court has deadlines, requiring objections to be served and filed “at the same time as the objecting party’s opposition or reply papers are served and filed.”

Outside the summary judgment motion, civil litigators in California are without specific rules in California on how and when to submit or respond to evidentiary objections, which may deal with a party’s character, fault, or policy issues such as insurance.  Litigators do not know whether the court will consider and rule on objections, and what it means if the court does not do so.

Judges from the Santa Clara County Superior Court have repeatedly noted in court orders:  “There is no authority holding that the Court must rule on an evidentiary objection made in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion.”  Appellate opinions in California confirm that some trial courts do not rule on evidence objections.

At the same time, there is nothing that prohibits trial courts from ruling on objections.  There are civil litigation cases in which judges have ruled on objections.  Sometimes parties have been deemed to have waived the right to make or respond to objections if they fail to do so in writing before the hearing.

When an attorney in California cannot predict how a court will deal with objections, it is risky not to make evidence objections or not answer objections when the opportunity arises.  The duty to deal with evidence objections may be part of a professional responsibility to zealously advocate a case.