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Tag: Admission of Improper Evidence

November 28, 2023
Defense verdict reversed because admitting complaints against employee were prejudicial

One thing that someone complains about after every trial is that the other side offered prejudicial evidence that the judge should have excluded. It’s almost always a loser argument. But it carried the day in Argueta v. Worldwide Flight Servs. (D2d8 Nov. 8, 2023 No. B306910) [nonpub. opn.]. Dissenting, Justice Grimes still thought it was […]

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February 7, 2023
PMQ Declarations, Extortion & AI Judges

On this cases-and-tidbits episode, Jeff Lewis and I discuss: Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed. Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows […]

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February 6, 2023
There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness (CEB)

CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative” […]

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January 25, 2023
There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. […]

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March 16, 2022
Use of Audio & Video at Trial Affirmed on Appeal

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it. A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at […]

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October 12, 2021
False Declaration Signed Under Pressure Does Not Create a Triable Issue

It is rare that the Court of Appeal will issue a writ instructing the trial court to grant summary judgment. But that is what happened in the published opinion in Forest Lawn Memorial-Park Association v. Superior Court (D4d2 Oct. 7, 2021) ___ Cal.Rptr.3d ___ 2021 WL 4618080 (no. E076549)(https://lnkd.in/gmx5GNmi). After the defendant filed a motion for summary […]

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March 2, 2021
Appellate Court Cites Unpublished Opinion to Support Reasonableness of Pain-and-Suffering Award

Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.) In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 […]

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February 17, 2021
Judgment Infected with Dozens of Errors, Still Affirmed (Mostly) on Appeal

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get […]

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December 11, 2020
$3MM Judgment Reversed for Improper Questioning into Privileged Matter, and Failing to Give Mandatory Jury Instruction Under Evid. Code, § 913

If you question witnesses at trial close to the line of privileged communications, be sure the judge gives the mandatory instruction, if your adversary asks for it, against drawing improper inferences under Evidence Code § 913. Also, asking about a client's intent in communicating with counsel is no different than asking about the communications themselves. Those are the […]

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November 3, 2020
Character Evidence, Even of Really, Really Bad Character, Is Not Admissible

The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that […]

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"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

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