One Ruling Down...

Cohen v. Kabbalah Centre Int’l, No. B284446 (D2d8 May 7, 2019)

I really like this a short and amusingly written opinion by Justice Wiley, recently appointed to the 2/8, mostly affirming a summary judgment. It doesn’t have kooky references or anything like that. Just a lot of short, punchy sentences that make it an easy read. It’s not every day you get a published decision that disposes of half a dozen issues in just thirteen pages without feeling like it’s giving the short shift to anything.

There’s two procedural issues. Both of which have good quotes. First, Plaintiff, who was on her fifth amended complaint, alleged that an oral contract to use her charitable donations only for certain purposes was agreed in 2004. But she had testified to the contrary at her deposition. So defendant moved for SJ. In opposition, Plaintiff put in a declaration that said, well actually the contract happened in 2003. 

You can’t do that. In a great articulation of the rule, the Court explains: 

The tactic of changing one’s story to avoid summary adjudication is improper. [¶] The point of the summary adjudication procedure is to test whether a full trial is necessary. The complaint is supposed to set forth the plaintiff’s proposed case, which the defendant’s summary adjudication motion then aims to test as a matter of law. But if the plaintiff’s opposition moves the factual target after the defendant has fired off its motion, this unfair tactic defeats the utility of the procedure.

The other issue deals with evidentiary objections. Plaintiff filed 197 of them. Including to the declarant’s statement that he could testify competently to the facts alleged. Justice Wiley isn’t amused. As he explains: 

This objection could accomplish nothing of substance in this litigation. It was frivolous. One ruling down. 196 to go.

The opinion draws a line in the sand: “When opposing a motion, objecting to every single thing with no display of professional judgment or restraint is an abusive practice.” The Court  then declines to address Plaintiff’s appeal of any other objections because her brief addresses whole swathes of objections without offering specific argument on any of them. “We decline to reward this conduct.”

In getting there, Justice Wiley notes that “litigants should focus on the objections that really count.” I couldn’t agree more. For a long time, I’ve been telling anyone who will listen that the ideal number of evidentiary objections on a SJ motion is somewhere around five. Your opponent might be super sloppy and you’ll be tempted to make more. But even on a really complicated SJ motion, I’ve very rarely found it to be the case that there are more than five items of evidence that are both: (1) subject to a strong legal argument for inadmissibility, and (2) potentially outcome determinative in a meaningful way. If it’s not both, don’t bother.

Affirmed in part.