Wednesday, April 27, 2005

Gallant v. City of Carson (Cal. Ct. App. - April 20, 2005)

This is a case worth reading for two reasons. First, as a practical matter, it's important, because the court holds even if a party makes evidentiary objections in its papers in connection with an anti-SLAPP motion, it waives those objections for purposes of appeal if it does "remind" the court at the hearing that the court must rule on those objections. Given the increasing use of anti-SLAPP motions, the preferential ability to appeal the resulting decision, and the often-critical nature of evidentiary objections in connection with such motions, this is a pretty important holding, and one that counsel should definitely keep in mind.

Second, the opinion also contains an enlightented debate between Justice Mallano, who's in the majority, and Justice Vogel, who dissents, about the merits of this holding. Both have very good points, and both articulate their positions well. Justice Mallano argues that because evidentiary rulings are so critical, we need parties to remind the courts to rule on such objections in anti-SLAPP motions -- at least if they want to preserve these objections for appeal -- for the same reason we have this rule in connection with summary judgment motions. But Justice Vogel responds that summary judgments motions are unique and that we should not extend the obligations thereunder to anti-SLAPP motions, particularly since imposing a duty upon counsel to "remind" the judge to do what s/he was obliged to do in the first place -- rule on the objections -- places counsel in a fairly awkward position vis-a-vis the judge.

It's a good debate.