Thursday, April 21, 2005
C.A.: Evidentiary Objections Waived by Failure to Obtain Ruling
Rule for Summary Judgement Motions Held Applicable to Hearings Under Anti-SLAPP Law
By DAVID WATSON, Staff Writer
A party that makes objections to evidence submitted in opposition to a motion to strike under the anti-SLAPP statute, but fails to insist they be ruled on, has waived the objections, this district’s Court of Appeal ruled yesterday.
Writing for Div. One, Justice Robert M. Mallano said the rule applicable to summary judgment motions under the state high court’s 1993 decision in Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, applies to motions to strike under Code of Civil Procedure Sec. 425.16.
“The Ann M. rule, applied in the summary judgment context, also governs anti-SLAPP motions because the two types of proceedings have similar standards,” Mallano declared, adding:
“Both types of proceedings require the trial court to assess the validity of the plaintiff’s claim on the merits, and the same evidentiary standards should therefore govern both.”
Presiding Justice Vaino Spencer concurred, but Justice Miram A. Vogel filed a dissenting opinion, arguing that the court’s ruling in Ann M. was based on a statute applicable only to summary judgment motions. Applying the same standard in the context of anti-SLAPP motions to strike would unfairly burden litigants, she contended.
“When objections are made to evidence offered in support of or in opposition to a motion for summary judgment, the objector must yell and scream and stamp his feet, or do whatever else it takes to force the trial court to rule on those objections,” Vogel wrote. “If he doesn’t, his objections are waived. The rule is tough enough in the summary judgment context, where it is necessary because the Legislature has said the trial court must consider all evidence except that to which objections have been sustained. But there is no similar legislative fiat in the anti-SLAPP statute, and thus (in my view) no reason for the majority’s conclusion that the same rule applies in this case.”
Code of Civil Procedure Sec. 437c requires that a court hearing a motion for summary judgment consider “all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court,” and specifically provides that evidentiary objections “not made at the hearing shall be deemed waived.”
Yesterday’s ruling came in a suit for defamation and wrongful termination filed by Anne Marie Gallant against the City of Carson and two city employees. Gallant was a manager whose duties included overseeing the city’s waste disposal services until she was discharged in 2003.
She claimed the discharge was in retaliation for her blowing the whistle on efforts to rig the bidding process for a city solid waste disposal contract. Gallant alleged she was defamed when the Carson city manager told staff members she had been terminated for incompetence.
The city contended in its motion to strike that the allegedly defamatory communications were privileged and that Gallant could not demonstrate a probability of success on the merits. Los Angeles Superior Court Judge Victor H. Person granted the motion to strike.
Mallano said the burden was on the city to obtain rulings on its objections to the declaration Gallant filed in opposition to the motion. Its failure to do so waived the objections, he explained.
Since the declaration was properly before the court as evidence, Mallano said, and since the assertions it contained were sufficient—if credited at trial—to support her defamation claim, Person was wrong to grant the motion to strike.
The justice noted that the court’s Div. Seven had applied the Ann M. rule in the context of a anti-SLAPP motion to strike in Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005. In that case, he observed, the court described the motion to strike as “akin” to a summary judgment motion.
An attorney’s “obligation to request a ruling from the trial court — outside the summary judgment context — is long and well established,” Mallano declared, dismissing the contention it imposed an undue burden on a lawyer bringing or opposing a motion under the anti-SLAPP law.
“He or she need only be diligent, for example, by making an oral request for a ruling,” Mallano explained.
But Vogel said attorneys “ought not to be put in the position of haranguing the very judges whose favorable rulings they seek.”
“Judges know they are supposed to rule on evidentiary objections, and those who fail to do so may frown upon the lawyer who presumes to tell the court how to do its job, placing the lawyer in the unenviable position known in chess as ‘Zugzwang,’ where a player is obliged to move but cannot do so without disadvantage—.Since meritorious objections were made in this case, I would disregard the inadmissible evidence and affirm the trial court’s order of dismissal.”
Vogel said “judicial restraint” should also have weighed against expanding the scope of the Ann M. rule. “—I do not believe we ought to impose procedural hurdles rejected by the Legislature,” she declared.
The assertion by Div. Seven in Slauson Partnership that a motion to strike under Sec. 425.16 is “akin” to a summary judgment motion was “conclusory,” Vogel said.
“The Legislature, knowing the change it wrought when it amended—section 437c in 1980,” Vogel argued, “chose not to include similar language in section 425.16 when it was enacted or when it was thereafter amended—. Since the Legislature is presumed to know the law and to make these distinctions intentionally, not whimsically, it seems to me that we should not by judicial fiat amend that legislative decision.”
She noted that the city objected to Gallant’s declaration on, among other grounds, the basis that it contained hearsay.
Gallant was represented on appeal by Los Angeles attorneys Craig A. Horowitz, Wayne D. Clayton and Richard G. Munoz of Horowitz & Clayton. The city and its employees were represented by Seyfarth Shaw, Lorraine H. O’Hara and Dennis C. DePalma of Century City.
The case is Gallant v. City of Carson, 05 S.O.S. 1943.
Copyright 2005, Metropolitan News Company