The first and most important issue in any appeal is the standard of review. For the last decade, however, California appellate courts have been split on how to review evidentiary rulings made in connection with a summary judgment motion.

As a general proposition, summary judgment is reviewed de novo–with no deference to the trial court. And if evidentiary objections are made but not addressed, the appellate court will also consider those objections de novo. Reid v. Google, Inc., 50 Cal. 4th 512, 534-35 (2010).

But what if the trial court makes evidentiary rulings? What if summary judgment is granted because the non-movant’s evidence was excluded, leaving no material dispute of fact? Is that reviewed de novo like the summary judgment decision, or for abuse of discretion, like an evidentiary ruling at trial? In 2010, the Supreme Court declined to answer that question. Id. at 535 (“[W]e need not decide generally whether a trial court’s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.”). A decade later, the courts of appeal remain split on that question.

The Sixth District has held that the de novo standard of review applies. Pipitone v. Williams, 244 Cal. App. 4th 1437, 1451 (2016). The Fourth District, on the other hand, has repeatedly held that the abuse of discretion standard applies. See Mackey v. Trs. of Cal. State Univ., 31 Cal. App. 5th 640, 657 (2019); Miranda v. Bomel Constr. Co., Inc., 187 Cal. App. 4th 1326, 1335 (2010). To date the Supreme Court has not acted to resolve the split, perhaps because many appellate panels have sidestepped the split by applying both types of review. E.g., In re Auto. Antitrust Cases I & II, 1 Cal. App. 5th 127, 141 (2016) (“[W]e will not here resolve this outstanding issue, as our conclusions are sound under either theory.”).

There are strong arguments for the de novo standard. As the court of appeal noted in Reid, “Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.” Reid v. Google, Inc., 155 Cal. App. 4th 1342, 1358 (2007), aff’d and superseded by 50 Cal. 4th 512.

Whichever standard is ultimately chosen, everyone involved would benefit from the Supreme Court resolving this longstanding split. Until then, parties are well advised to continue presenting alternative de novo and abuse of discretion arguments when challenging or supporting evidentiary rulings on summary judgment.

About the Author:

Michael Von Loewenfeldt is a certified appellate specialist and the current Chair of the Bar Association of San Francisco’s appellate section. Michael represents civil litigants on appeal, and is a partner of Wagstaffe, von Loewenfeldt, Busch & Radwick LLP in San Francisco.