Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary. This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.
Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions. In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment. The employee opposed the motion, including submissions of 750 pages of evidence. In reply, the employer submitted 335 separate objections to the plaintiff’s evidence. Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.
The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment. The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections. Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court. It said. “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”
This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions. Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire). Tread carefully!