On January 30, 2008, the Supreme Court granted review in Reid v. Google, no. S158965. Here is the Court's statement of issues on review:
(1) Should California law recognize the "stray remarks" doctrine, which permits the trial court in ruling on a motion for summary judgment to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?
(Emphasis added.) Issue (2) is the Biljac issue (see this blog post for more). In Biljac Associates v. First Interstate Bank, 218 Cal.App.3d 1410 (1990), the Court of Appeal (First Appellate District, Division Two) held that, when ruling on a summary judgment motion, the trial court need not expressly rule on each evidentiary objection, but may simply include a statement in the order that only relevant and admissible evidence was considered. Under Biljac, that was sufficient to preserve the objections for appeal (contrary to the usual rule that objections not ruled upon are deemed overruled and thus effectively waived).
Two recent decisions created confusion about Biljac's contining vitality as precedent. In Aprill 2007, in Demps v. San Francisco Housing Authority, 149 Cal.App.4th 564 (2007), the same district and division that decided Biljac expressly overruled the decision, calling it "wrong":
Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge's failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review.
Id. at 566. The Demps opinion was authored by Justice Richman, who used to sit on the Alameda County Superior Court and presumably had direct experience applying Biljac. He was joined by Justice Kline, who was part of the original three-justice Biljac panel, and Justice Haerle. According to the docket, no petition for review was filed in Demps.
Then, in October, the Sixth Appellate District decided Reid v. Google, Inc., 155 Cal.App.4th 1342 (2007). There, the Court held that Biljac was correctly decided, and explained:
With regard to the trial court’s duty when presented with objections to evidence in the summary judgment context, the weight of current authority is contrary to the holding in Biljac, and seems to agree that (1) the trial court is obligated to rule expressly on all objections, and (2) the court’s failure to do so may effect a “waiver” of objections, so that they are not preserved for appellate review. This view appears to have grown out of the statutory command that the trial court “consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court ....” (Code Civ. Proc., § 437c, subd. (c), italics added.)
However, we believe the Biljac decision was substantially correct, and was surely more nearly correct than its critics have been. Indeed, based on Biljac, in the absence of express rulings by the trial court, as in the present case, we presume either that the trial court ruled correctly on evidentiary objections, or that the court overruled all objections it did not expressly sustain.
Contrary to the assumption indulged by a number of courts, the language of Code Civil Procedure section 437c, subdivision (c) does not mandate express rulings. Rather, it reinforces the requirement of express objections by directing the court to consider all evidence, objectionable or not, unless it finds that a meritorious objection has in fact been made. But nowhere is the court commanded to issue an explicit ruling. Moreover, even if the statute could be read to impose such a requirement, it does not mandate that in the absence of express rulings the underlying objections are forfeited on appeal. The fact is that when a party properly brings an objection to the trial court’s attention—i.e., when he files it in proper form—he has done everything he can or should be required to do to bring about a ruling. The fact that a trial court does not expressly rule on such objection should not be interpreted as a waiver of the party’s objection.
The analysis of waiver of evidentiary objections becomes clearer when viewed in the context of appellate review of evidentiary objections asserted during trial. When an objection is made during the examination of a witness, the examination of the witness cannot proceed until the trial court acts on the objection. The most common action is for the trial court to say “sustained” or “overruled,” which of course constitutes a clear ruling and preserves the issue for appeal. But if the court fails to make that express statement, we would still consider the issue preserved on appeal. This follows directly from Evidence Code section 353, which provides that an objection is preserved for appeal if it is sufficient in form; there is no requirement that the objection be expressly ruled upon.
Moreover, the lack of an express ruling on an objection in the trial context does not necessitate our finding that no ruling was actually made. For example, if the court permitted the witness to answer, we would find the court impliedly overruled the objection. We would infer the opposite—that the court sustained the objection—if the court instructed the witness not to answer, told the questioner to proceed to his next question, or struck any answer the witness had already given. We would not deem the lack of an express ruling on an objection as a forfeiture of the objection on appeal.
The trial practice circumstance most nearly analogous to the court’s procedure in a summary judgment motion is that in which the court permits a party to adduce evidence over his opponent’s objection, while reserving a ruling on the admissibility of the evidence. In such a case, if the court neglects to expressly rule on the objection, it is presumed to have overruled it and admitted the challenged matter into evidence. (Clopton v. Clopton (1912) 162 Cal. 27, 32; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 387, p. 480; see People v. Flores (1979) 92 Cal.App.3d 461, 466; People v. Jacobs (1987) 195 Cal.App.3d 1636, 1651.)
In our view, this is the simplest and soundest approach in the present context. If a party lodges otherwise proper objections to evidence, and the court does not rule on those objections at the hearing, the court should be viewed as having reserved a ruling on the objections. Its later failure to issue an express ruling effects an implied overruling of all objections, which are therefore preserved for appeal. The entire record is thus presumptively before the appellate court, and the burden is on the objecting party to show that evidence presumptively considered by the trial court should instead be disregarded in determining the propriety of the order on the merits.
Slip op. at 14-16 (emphasis in original). Strangely, the opinion does not mention Demps. And, now that the Supreme Court has granted review in Reid, that decision is no longer citable, while Demps and Biljac remain citable law.
On February 8, 2008, the Daily Journal ran a Focus article by Walnut Creek attorney Gary A. Watt on the three decisions, "Obtain a Ruling, Or Else? (subscription)." The article, which was written before review was granted in Reid, gives practitioners this advice:
So is Biljac still wandering around in the judicial night, and if so, what should practitioners do? As Reid states, make objections in proper form. See, California Rules of Court Rule 3.1354. And, just in case, take the proactive approach, even pointing out in your papers that Biljac has been disowned by its creators in Demps. Make your record, requesting rulings on your objections.
That remains sound advice. You could also point out in your papers that the Supreme Court has taken up the issue in Reid.
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