• Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





Joining forces with Consumer Attorneys of California

A few bloggers who support consumer rights are getting together to offer plaintiffs' attorneys a valuable resource and bundle of information.  Here's the first post from H. Scott Leviant, who writes The Complex Litigator at

George Washington once said:
Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.

Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental Army. Because of that disparity in resources, Consumer Attorneys of California ("CAOC") consolidates the voices of consumer attorneys throughout the state to (1) preserve and protect the constitutional right to trial by jury for all consumers, (2) champion the cause of those who deserve redress for injury to person or property, (3) encourage and promote changes to California law by legislative, initiative or court action, (4) oppose injustice in existing or contemplated legislation, (5) correct harsh, unjust and oppressive legislation or judicial decisions, (6) advance the common law and promote the public good through the civil justice system and concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care, (7) uphold the honor, integrity and dignity of the legal profession by encouraging mutual support and cooperation among members, (8) promote the highest standards of professional conduct, and (9) inspire excellence in advocacy. This post is a multi-blog effort to inform consumer attorneys about CAOC's value and encourage participation in CAOC through membership.

CAOC works tirelessly to protect or advance those causes of import to consumers and their attorneys in California. Often those efforts, though valuable, receive little fanfare. For example, CAOC recently sponsored SB 510, which affects the re-sale of what are known as "structured settlements," in which victims receive financial compensation over a period of time for medical expenses and basic living needs, as determined by a jury. Before SB 510 was signed by the Governor, Courts expressed frustration at their inability to prevent the sale of structured settlements on terms that might ultimately lead to long-term financial hardship for the victim. Now, SB 510 gives judges the information they need to make a reasoned decision about the propriety of a structured settlement sale.

Measures like CAOC-sponsored SB 510 help protect the most vulnerable members of our society and ask for nothing in return. They exemplify the spirit of CAOC. However, CAOC is only as effective in its mission as its membership allows it to be. When consumer attorneys join the ranks of CAOC, its voice gains in power and clarity. But if consumer advocates sit on the sidelines, hoping to benefit from the work of others, CAOC is stretched thin, and we are all at risk as a result.

Now, consumer advocate bloggers from across the state are combining their voices to call upon each and every lawyer and firm that regularly represents plaintiffs to join CAOC, thereby strengthening the consumer's first line of defense. The blogs participating in this unified call to action are:

Show your support of consumers' rights by joining and supporting CAOC. Together we can make an impact that we cannot make alone.

Objections in motions for summary judgment

In motions for summary judgment, the objecting party must either (1) submit objections in writing pursuant to California Rules of Court, rule 3.1354 or (2) make arrangements for a court reporter to be present at the hearing.  (CRC, rule 3.1352.)  I would always recommend in favor of preparing written objections.  Written objections must be served and filed at the same time as the objecting party's opposition or reply papers are due. (CRC, rule 3.1354(a).) You want the judge to have the benefit of your written objections while he or she is reviewing the motion.  You don't want the judge to engage in a comprehensive review, reach a tentative decision, and then hear objections for the first time at the hearing.  If, for some reason, you are forced to wait until the hearing, then I would recommend that your objections be as specific as required of written objections in CRC, rule 3.1354(b). 


Pursuant to CRC 3.1354(c), you must also provide a proposed order to allow the court to rule on written objections.  What could be easier?  The court simply has to check the line for "sustained" or "overruled."  And if you forget to ask the court for a ruling, you have a document in your hand to remind you.  Despite this seemingly streamlined procedure, I still recommend that the objecting attorney limit his or her objections to those that are truly important to the motion as no judge wants to rule on numerous objections, especially when they relate to unimportant facts or the objections are boilerplate.  Presenting the trial court with a select few objections enhances the chances of getting a ruling.


Relying on an oral objection poses a risk that you might forget to obtain a ruling.  A similar problem might arise where the objecting party fails to prepare a proposed order, which is mandatory under CRC, rule 1.354(c).)   If you know the objection in advance and just forgot - yikes! - to prepare written objections, you might consider preparing a proposed order in a similar format to accompany your oral objection.


Failing to object and obtain a ruling on the objection can have a significant impact on appellate review.  The failure to obtain a ruling on evidentiary objections will result in a waiver, allowing the appellate court to consider the objectionable evidence in reviewing the motion. (Demps v. San Francisco Housing Authority (2007) 149 Cal. App.4th 564, 578.


What about the judge who refuses to rule even though you request a ruling or says that he or she will only consider admissible evidence?  We look at these situations in my next post . . .


The importance of objections

The importance of objections in preserving the record on appeal cannot be emphasized enough.  To me, it is as important as saying “I do” during a wedding ceremony.  Until you speak those two little words, the wedding cannot be completed.  In a similar vein, until you object, you have not preserved the issue on appeal.

Challenging the admission of evidence generally takes three forms, depending on the timing:

1.     A pre-emptive motion in limine before trial begins;

2.     An immediate objection at the time the evidence is to come in; and

3.     A motion to strike if a witness answers before you can object or before the judge can rule on your objection, or the witness's response is non-responsive.

The biggest problem I have observed in this area is that the trial attorney fails to make a proper objection on the ground to which an appeal is being taken or the judge fails to rule on the objection.  For instance, these problems can arise when an objection is made and then the attorneys and trial court engage in a discussion, losing sight of the fact that ruling has not been made.


Answering questions during oral argument

     In the past I have lectured on the importance of answering the questions asked of you by the justices during oral argument.  After watching an afternoon of oral argument last week, I thought I might expand on this advice:

  • Most attorneys come into court with an outline and a presentation in mind.  They may be so wedded to the presentation that questions from the bench may seem like a distraction and the attorney rushes to return to his or her script.  Stop!  Think of a question as a gift because it allows you a glimpse into the justice's thinking so you can answer any concerns the court might have.  You have limited time; why not spend it on an issue that you know is pivotal to the case?

  • Let the justice ask the question.  The question might come out as a single sentence or it may be followed by an example or an additional question.  Don't jump in without allowing the justice to finish the question.  I observed several attorneys who were so anxious to answer a question that they stepped all over the justice's question.  Not only is it discourteous but the attorney takes the risk of answering the wrong question.

  • If you don't understand the question, say so.  I have never observed a justice losing patience with an attorney who asked for clarification.

  • Answer the question.  I know it sounds simple, but attorneys often try to give a quick answer, so as to move away from an area that they perceive as weak for their position, and then return to a positive presentation.  Some justices speculate as to whether the attorney intentionally fails to answer the question.  Listen and answer the question as best you can.  Be prepared for a question that probes the weaknesses in your position.

  • Because answering a question requires you to listen, think and speak without a prepared script, I find that attorneys often become more relaxed and natural when a question is interposed.

  • Don't try to avoid making any concessions.  You will lose your credibility if you try to deny what is obvious to everyone in the courtroom.

  • Eliminate statements such as "to be perfectly honest," "honestly," or "to tell the truth."  It raises an inference that you might have been lying before that statement.  If your words are spoken truthfully, then the justices will be able to pick that up.

  • I would eliminate the frequent use of "I believe," "I think," or "in my opinion."  Of course, most of this is your opinion, and when it is not, such as a case holding, you weaken your position by stating this is what you think the case holds.

  • Listen to the questions asked of your opposition and assume you might get the same or similar questions.  Prepare yourself.

  • If you are asked to prepare a letter brief on a question, either before or after oral argument, consider it another opportunity to shed some light on an issue that is troubling the court.  This is your chance to enlighten the court.  Don't overlook the importance of these requests.

  • Avoid asking if the justices have any questions. I have never met a justice who was too shy to ask a question and an invitation has never prompted a question that a justice was too afraid to ask.  The invitation is probably made in an attempt to seem polite but it is really unnecessary.


Abuse of the Discovery Act

Last week I reported on abuses of the summary judgment motion.  Now abuses of the discovery procedure are under examination.  In Clement v. Alegre (2009) 177 Cal.App.4th 1277, plaintiffs appeal from the imposition of $6,632.50 as a discovery sanction because they interposed objections to special interrogatories which the discovery referree concluded were "unreasonable, evasive, lacking in legal merit and without justification."  The appellate court agreed and affirmed the order.

The case involves a real estate dispute.  Defendant served two sets of 23 special interrogatories on the individual plaintiff and the plaintiff corporation.  The objections included an objection that the term "economic damages" was vague and ambiguous, partly because the defendant failed to refer to Civil Code section 1431.2, which defines the term.  Plaintiffs also objected that a question that asked the amount of damages identified in answer to another interrogatory was not "full and complete."  And so on . . .

The parties engaged in unproductive meet-and-confer letters, arguing the merits of their respective positions.  The matter was heard by a discovery referee, who found the objections were without merit, among other things.  The referee recommended plaintiffs be ordered to respond and pay sanctions.  The order was ultimately adopted by the trial court.

In affirming the order, the appellate court held that sanctions may be imposed for misuse of the discovery process even if the misuse is not willful. It noted plaintiffs had referred to the statutory definition and then submitted responses that were narrower than the definition.

As to the objection that the interrogatories were not "full and complete," the court interpreted this objection to prohibit reference to other materials or documents, or incorporation by reference, to undermine the numerical limit on interrogatories.  "To conclude otherwise in these circumstances would require a cumbersome redrafting of questions and potentially multiple rounds of discovery, undermining the Act's aim of clarity and simplicity and returning to the era of 'paper[ing] to death' the opposition."

The court also addressed the meet-and-confer process, finding the evidence demonstrated the parties had reached an impasse; however, it found the plaintiff engaged in "game-playing," which was designed to delay the proceedings.  It concluded the referee's findings and award were supported by the record, and furthermore, the trial court did not abuse its discretion. The court confirmed that the discovery statutes require "'a serious effort at negotiation and informal resolution.'"  It went on to state:
Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that '[a]rgument is not the same as informal negotiation' . . . that attempting informal resolution means more than the mere attempt by the discovery proponent 'to persuade the objector of the error of his ways' . . .' and that 'a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.'"

This might be a good case to hang on to in case of frivolous objections or meet-and-confer discussions that lack any genuine attempt to cooperate and resolve the discovery dispute.