Howard Entertainment, Inc. v. Kudrow , 208 Cal. App. 4th 1102 ( 2012 )

TURNER, P. J., Concurring.

I concur.

I would apply the deferential abuse of discretion standard of review to the ruling striking the declaration of Martin Bauer. Admissibility of evidence issues, even in the summary judgment context, are reviewed under the majority rule for an abuse of discretion. Every single Court of Appeal decision in the past one-half decade has applied the abuse of discretion standard of review in the summary judgment context to admissibility of evidence contentions. (Barker v. Hennessy Industries, Inc. (2012) 206 Cal.App.4th 140, 146-147 [141 Cal.Rptr.3d 616]; Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 505 [132 Cal.Rptr.3d 72]; Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82-83 [127 Cal.Rptr.3d 863]; Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335 [115 Cal.Rptr.3d 538]; Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332 [86 Cal.Rptr.3d 274]; Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 711 [82 Cal.Rptr.3d 882], disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7 [113 Cal.Rptr.3d 327, 235 P.3d 988]; Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449 [81 Cal.Rptr.3d 65]; Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 [71 Cal.Rptr.3d 707]; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679 [69 Cal.Rptr.3d 888]; Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1003 [68 Cal.Rptr.3d 73]; Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1407 [66 Cal.Rptr.3d 776]; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 [59 Cal.Rptr.3d 618]; Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1311 [41 Cal.Rptr.3d 80].) Our Supreme Court has not yet decided whether the abuse of discretion standard of review applies to admissibility of evidence issues in summary judgment appeals. (Reid v. Google, supra, 50 Cal.4th at p. 535.) But I believe in this case, that is the proper standard of review.

And the unanimous view of the Courts of Appeal makes great sense. There are a plethora of issues, other than the appeal’s ultimate merits, which, in the context of summary judgment litigation, are reviewed for an abuse of discretion. (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 [140 Cal.Rptr.3d 281] [denial of continuance request pursuant to Code Civ. Proc., § 437c, subd. (h)]; Hall v. Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 730 [123 Cal.Rptr.3d 274] [new trial motion based on newly discovered evidence after summary judgment entered subject to abuse of discretion standard of review]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [111 Cal.Rptr.3d 910] [refusal pursuant to Cal. Rules of Court, rule 3.1300(d) to consider surrebuttal papers reviewed for abuse of discretion]; Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72 [103 Cal.Rptr.3d 906] [decision to allow a party to file a renewed or subsequent motion for summary judgment reviewed for an abuse of discretion]; Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [103 Cal.Rptr.3d 811] [abuse of discretion standard of review applies to trial court’s refusal to deny a summary judgment motion because defendant’s papers did not have the legally required headings]; Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416 [94 Cal.Rptr.3d 288] [decision to grant summary judgment because no opposition separate statement filed reviewed for abuse of discretion]; Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 900 [83 Cal.Rptr.3d 146] [abuse of discretion standard of review applies to trial court’s decision to grant summary judgment based upon state of mind evidence of a sole witness as permitted by Code Civ. Proc., § 437c, subd. (e)]; Hollywood Screentest of America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 643-645 [60 Cal.Rptr.3d 279] [trial court did not abuse its discretion in declining to read a disorganized set of exhibits and to allow the filing of an additional declaration]; Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 67, 71-75 [50 Cal.Rptr.3d 149] [striking portions of a separate statement]; Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 479 [32 Cal.Rptr.3d 151] [trial court’s decision not to expressly rule on lengthy evidentiary objections]; Centennial Ins. Co. v. United States Fire Ins. Co. (2001) 88 Cal.App.4th 105, 111 [105 Cal.Rptr.2d 559] [in an appeal from a summary judgment order where the trial court used its equitable powers to allocate defense costs, standard of review is abuse of discretion]; Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1525, fn. 23 [76 Cal.Rptr.2d 322] [denial of opportunity to orally argue motion]; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [13 Cal.Rptr.2d 811] [consideration of new evidence attached to the reply].) Admissibility of evidence questions, like the foregoing issues, involve trial courts making qualitative and sometimes equitable determinations. Thus, I would expressly review this issue (as many other problems arising in the summary judgment context are examined) under the deferential abuse of discretion standard of review.

Here, the trial court did not have the discretion to sustain defendants’ objections to the declaration of Mr. Bauer. The uncontroverted evidence demonstrates that Mr. Bauer is a knowledgeable, experienced entertainment lawyer and manager. He has worked for the most renowned entertainment agencies in the world: International Creative Management and The William Morris Agency. He has owned his own agency. He was a senior vice-president of The William Morris Agency and has lectured to entertainment and legal audiences alike about the roles of an agent and a personal manager. He has represented the interests of leading actors. He did not have to be an agent to describe what they have done historically and currently. Our Supreme Court has made it clear that as a matter of law—an experienced, knowledgeable and professionally trained witness expressing an opinion need not be a practitioner in the field about which she or he expounds. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37-40 [210 Cal.Rptr. 762, 694 P.2d 1134].) Unless our Supreme Court overrules Mann, it is a black letter statement of California law. Further, Mr. Bauer provided detailed analysis of custom and practice and did so in the context of depositions in this case. In my view, the exclusion of Mr. Bauer’s declaration was an order beyond the allowable scope of judicial discretion. Well-established opinion testimony decisional authority arising in the context of summary judgment appeals supports this conclusion. (Avivi v. Centro Medico Urgente Medical Center, supra, 159 Cal.App.4th at pp. 471-472; Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 121-130; Hanson v. Grode (1999) 76 Cal.App.4th 601, 607 [90 Cal.Rptr.2d 396].) Thus, I concur in the judgment.

Respondents’ petition for review by the Supreme Court was denied November 14, 2012, S205647.