As one court has explained, "[A]ny other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." In re Aaron B., 46 Cal. App. 4th 843 (1996).
Nevertheless, the failure to make a proper objection or an adequate record to preserve a claim of error on appeal can be a trap for the unwary. Even counsel who recognize their obligation to make a sufficient record in the abstract may not appreciate all the steps that must be taken to preserve an issue for appeal.
Two recent cases provide cautionary tales for practitioners regarding the perils of issue preservation. In the first, instructional error was waived. In the second, the party managed to jump through sufficient hoops to avoid waiver of evidentiary objections.
Jury Instructions. Some attorneys still think that instructional error is preserved on appeal whether or not an objection is made. After all, Code of Civil Procedure section 647 states that "giving an instruction, refusing to give an instruction, or modifying an instruction requested" is a matter "deemed excepted to."
But in Agarwal v. Johnson, 25 Cal. 3d 949 (1979), disapproved on other grounds by White v. Ultramar, Inc., 21 Cal. 4th 563 (1999), the Supreme Court held that section 647 is not an all–encompassing safety net and preserves error without an objection only where an instruction entirely misstates the law. If an instruction is erroneous because it is vague or incomplete, an objection and suggested cure must be made to preserve the issue for appeal.
In the wake of Agarwal, the Courts of Appeal repeatedly have been required to ponder whether an instruction is completely wrong, and thus reviewable without objection, or only partially wrong, such that error is waived in the absence of a proper record in the trial court. The moral of the story is that the only safe approach is to put any and all objections to instructions on the record; it is far better to over–object than waive an instructional error.
But even a seemingly explicit objection still may not be enough, as the recent case of In re Conservatorship of Gregory, 95 Cal. Rptr. 2d 336 (2000), demonstrates. In Gregory, an elder–abuse case, the defendants offered their own set of proposed instructions. They also objected on the record to "any instruction that was not proposed by the defendants." They further specifically objected to instructions incorporating state and federal regulations to define the standard of care.
Nevertheless, the Court of Appeal ruled that the defendants waived a claim of error as to a key instruction defining elder abuse and based on a section of the Welfare and Institutions Code. The defendants argued that the instruction was incorrect as a matter of law because it omitted definitions contained in other statutes of critical terms used in the instruction. The Court of Appeal held that the instruction was not legally incorrect, but simply incomplete — a defect that should have been brought to the trial court’s attention through a request for additional or clarifying instructions.
Thus, despite an express objection to the plaintiff’s instructions, the defendant’s failure to object specifically to the plaintiff’s definitional instruction and request that it be enlarged to include additional statutory provisions waived objection to that instruction on appeal.
In short, Gregory is a timely reminder that trial counsel must be both vigilant and specific in their objections to jury instructions to preserve instructional error on appeal.
Summary Judgment. Preserving evidentiary objections in summary–judgment proceedings is another trap for the unwary. Again, some attorneys may still assume that filing written objections to the evidence presented by an opponent preserves the objections on appeal. However, in 1999, the Supreme Court ruled that evidentiary objections at the summary–judgment stage are waived unless the objecting party succeeds in obtaining a ruling on the objections from the trial court. E.g., Sharon P. v. Arman Ltd., 21 Cal. 4th 1181 (1999); Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993).
Even when objections seem quite meritorious — as with evidence that plainly is hearsay or without foundation — a party that fails to obtain rulings from the trial court generally is without recourse in the appellate court. In such circumstances, the reviewing court "must view the objectionable evidence as having been admitted in evidence and therefore as part of the record." Ann M.
Exceptions to this waiver rule are rare, but the defendants in the recent case of Long Beach v. Farmers & Merchants Bank of Long Beach, 97 Cal. Rptr. 2d 140 (2000), managed to preserve their evidentiary objections without obtaining a ruling from the trial court — but only with substantial effort.
In Long Beach, the defendants appealed from an adverse summary judgment, raising, in part, their evidentiary showing. In the trial court, the defendants not only submitted 16 pages of objections to the plaintiff’s evidence, they included check–off boxes after each objection to maximize the ease with which the trial court could rule on each objection. Despite the handy check–off format and two subsequent oral requests by the defendants for rulings on their objections, the trial court never sustained or overruled any objection.
The defendants’ heroic efforts were not lost on the Court of Appeal. In light of the record, the appellate court concluded that a third oral request for rulings would have been fruitless. Therefore, the defendants’ evidentiary objections were preserved and there was no waiver on appeal.
Long Beach, then, provides some hope that a party will not be held hostage by a trial court’s inaction on timely evidentiary objections in a summary–judgment proceeding. But a party better make a record that he or she is a pest on the point before relying on a Long Beach futility argument.
In addition to the instructional and evidentiary waiver issues discussed in Gregory and Long Beach, the issue of waiver can arise in any number of additional circumstances — from unreported in–chambers and side–bar conferences to the failure to make and offer of proof.
Sometimes counsel forego making an objection or adequate record for tactical reason. But waiving an issue in the trial court limits what a reviewing court will do with that issue on appeal — no matter how meritorious. If a legal issue, instruction or evidentiary point is important, the prudent course is to follow the Long Beach lead and be timely, specific and persistent in making a record to preserve the issue.