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4 février, 2008 22:08

Mike McKee

The Recorder

02-04-2008

E-mails were flying between litigators Thursday as word spread that the California Supreme Court had agreed to resolve a thorny issue over how trial court judges should treat evidence.

Specifically, the high court decided Wednesday it was time to take a closer look at so-called Biljac rulings to clarify what lawyers and trial court judges must do to ensure that evidentiary objections are preserved for appellate review when summary judgment motions are decided.

"It's an issue only a lawyer could love, but it's a significant issue," Los Angeles appellate specialist Robin Meadow said Thursday. "And I'm guessing that the Supreme Court granted review, at least in part, because it wanted to put to rest a lot of confusion."

Meadow, a partner with Greines, Martin, Stein & Richland, joined with Charity Kenyon, a partner in Sacramento's Kenyon Yeates, in urging review by filing an amicus curiae letter in early January on behalf of the California Academy of Appellate Lawyers. Clarification by the Supreme Court, they wrote, would "provide sorely-needed guidance to trial courts, appellate courts and the lawyers who practice before them."

In the case taken by the high court -- Reid v. Google Inc., S158965 — San Jose's 6th District Court of Appeal had reinstated Brian Reid's age discrimination suit against the Internet giant. The 52-year-old had worked for two years as Google's director of operations and engineering.

The 6th District reviewed evidence that included anonymous, age-based derogatory comments by employees and the general youthful atmosphere at Google, even though the company had objected to their admittance in the trial court.

Santa Clara County Superior Court Judge William Elfving didn't render formal rulings on the objections, but in granting summary judgment for Google he said he relied on competent and admissible evidence.

"As a result, Google's objections to evidence were never considered, yet all of Reid's evidence was considered by the court of appeal, regardless of its patent inadmissibility and complete lack of probative value," Google's attorney, Fred Alvarez, a partner at Palo Alto, Calif.'s Wilson Sonsini Goodrich & Rosati, wrote in his petition for review. "The opinion did not consider the substantive grounds of Google's evidentiary objections in reaching its decision to reverse the superior court's order."

Alvarez declined to comment on the case.

The trial court judge followed the dictates of Biljac Association v. First Interstate Bank, 218 Cal.App.3d 1410, a 1990 ruling by San Francisco's 1st District that said trial judges didn't need to issue written rulings on evidentiary objections in summary judgment proceedings. The court held there is a presumption the trial judge "has not relied on irrelevant or incompetent evidence."

Biljac has been vilified in most legal circles and, in fact, was overruled last year by the 1st District in Demps v. San Francisco Housing Authority, 149 Cal.App. 4th 564. In refuting Biljac, 1st District Justice James Richman said "a trial judge's failure to rule on properly presented objections results in their being impliedly overruled."

Nonetheless, 17 years of Biljac caused plenty of confusion, with appellate courts handing down conflicting opinions about what must be done to preserve review of evidentiary objections.

"In some courts, undecided objections are always waived," Meadow and Kenyon wrote in their amicus brief. "In others, they are not waived as long as a party makes an attempt -- how much is necessary is never clear -- to obtain rulings. In still others, including the present case, rulings are unnecessary and the objections are preserved through the mechanism of implied overruling."

They said the associated problems had the potential of affecting "every single case litigated in California's courts" because "any evidence-based motion is likely to trigger objections."

Reid's lawyer, Paul Killion, a partner in Duane Morris' San Francisco office, declined to comment for this story. But in his court papers he argued that Google didn't have standing to bring a Biljac issue.

"Regardless whether the 'Biljac issue' has created a 'procedural morass' and 'complete lack of uniformity among the appellate districts,' as Google claims," he wrote, "this case is not the vehicle to resolve the issue. By following Biljac, instead of a strict waiver approach, the court of appeal's decision benefited Google because Google's objections were considered on the merits."