I am generally pretty darn impressed when a court admits that it was wrong. That takes a lot of guts. And modesty. It's also -- perhaps for those two reasons -- fairly rare.
So I smiled when I read the first two paragraphs written by Justice Richman in this case. Which read as follows:
"Paraphrasing Alexander Pope, a court 'should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday.' (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) Vol. I, p. 340.)
We write today to 'own' that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that “ ‘I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.’ ” (Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Courts cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review."
Nice. Though two quick caveats. First, it's a little less impressive to admit your error when it's been pointed out for 15-plus years by every published appellate decision to address the issue. (As an aside, I've never seen as many red flags as when I keycited Biljac -- there must be over 100 of them, and one is attached to virtually every case that has ever cited Biljac.) One's natural tendency is to say: "Great, you admit your error. Took you look enough, eh?" Second, while I admire the way Justice Richman admits the mistake, let's not forget that Justice Richman is not admitting that he was wrong. Rather, Justice Richman's admitting that the opinion by Justice Smith was wrong -- an opinion written for a court back in 1990 on which Justice Richman wasn't a member. (Justice Richman was, in fact, only appointed to the Court of Appeal last year.) Admittedly, Justice Kline -- who's on the current panel -- was on the court back in 1990, and Division Two of the First Appellate District has never heretofore repudiated Biljac. Still, having Justices Richman, Klein and Haerle admit that Justice Smith was wrong back in 1990 is hardly a severe personal mea culpa.
Still, I liked reading what I read here. I agree that Biljac was wrong. I'm glad that Justice Richman agrees, and that we've now cleaned up the law here. Even if it was 17 years in the making. (Something that's assuredly not Justice Richman's fault!)
