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Reid v. Google (Cal. Supreme Ct. - Aug. 5, 2010)

By Shaun Martin

You'll be happy to know that you no longer have to "stomp and scream" -- often, an exercise in futility anyway -- at summary judgment hearings and beg the trial court (under penalty of waiver) to expressly rule on your evidentiary objections. The California Supreme Court says that it's okay to simply file written objections, and if the trial court doesn't rule on them, they're presumed overruled and you can argue error in the Court of Appeal if you'd like. No waiver.

You'll also be happy to learn -- at least if you represent plaintiffs in discrimination cases -- that the California Supreme Court also thinks that the federal "stray remarks" doctrine is too broad, and held this morning that such evidence (even by nondecisionmakers) may well be relevant and admissible. That's going to make summary judgment in these cases even harder than it is already. Particularly since the California Supreme Court doesn't do a very good job of telling the trial courts how much to weigh such comments, and merely states that they should be viewed "in the totality" of the case and with all inferences in favor of the nonmoving party. That'll turn into heightened paydays for contingency fee lawyers. It's a big win for the plaintiffs' bar.

This was not, parenthetically, the best opinion ever by Justice Chin. It's not that the analysis is necessarily faulty or incomplete. But the opinion reads so much like it's a bench memo. Which, of course, it is. Way too much discussion of prior non-controlling authorities and string cites about tangential topics. Stuff you might want to read when deciding a case but that doesn't add to the actual decision.

But that's what can happen when you write the opinion in advance.

An important case for litigators in any field, but especially on the discrimination side.

Full post as published by California Appellate Report on August 05, 2010 (boomark / email).