Preserving your objections for appeal

If you have complied with California Rules of Court, rule 3.1354(c) (and kept your objections down to a sensible number), then the judge will have a printed order with a space to make those rulings. It should be harder to overlook that duty or forget it during the hearing. Certainly you don’t want to waive the objection but neither do you want to annoy the judge by making repeated requests for a ruling. How many requests are enough? Well, I wouldn’t stop at one. A request should be made when the objections are discussed, and if nothing happens, at the conclusion of the hearing. If the trial court is refusing to rule, you want that refusal on the record.

In City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, Justice Turner opined that two requests were enough to overcome a waiver argument, noting “Frankly, in this case, there was nothing further defense counsel could be expected to do in terms of seeking rulings on the previously filed evidentiary objections beyond personally raising the issue on two separate occasions in the presence of the trial court. It [] has been held that issues are preserved for review when it would be fruitless or an idle act for an attorney to object.” (Id. at p. 784.) What is a futile act may depend on the record, but the attorney should make every attempt to get an actual refusal to rule on the record, rather than open up the failure to rule to the possibility it was simply a matter of forgetfulness.

The magic number was three requests in Vineyard Springs Estates, LLC v. Superior Court (2004) 120 Cal.App.4th 633. The Third Appellate District issued a writ of mandate, requiring the trial court to fulfill its mandatory duty to rule on defendant’s evidentiary objections. As noted in Vineyard, how can a trial court fulfill its duty of specifying the evidence that supports its decision, as required by Code of Civil Procedure section 437c. “A trial court cannot faithfully carry out this mandate if it has not considered all objections to proffered evidence and ruled on their merits.” (Id. at p. 642.)

Objections are important on two levels, during trial and when the case is on appeal. At trial, the attorney is concerned with having some control over the flow of the trial, and especially, the testimony and other evidence. Generally, the goal is to keep out certain evidence or restrict the evidence presented by the opposing side.

Even before we became attorneys, we watched T.V. and movie attorneys objected vehemently during trial. Some of those objections were proper in form but usually the objection was fashioned to fulfill dramatic requirements. Unlike the world of movies, a proper objection must satisfy the procedural rules of the Code of Civil Procedure, as discussed below.

It is surprising to me how many attorneys will rely on a faulty memory to claim they objected below when a review of the reporter’s transcript often reveals that the objection has not been properly made or the attorney did not secure a ruling on the objection. No one likes to lose a good ground for appeal due to the failure to say a few magical words.