Table Of ContentCalifornia Objections § 1:10
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > I.
Introduction
§ 1:10 Applicable Rules
In General. The trial of a cause in California is governed by the following:
- United States Constitution
- California Constitution
- California codes
- California Rules of Court
- Local rules of the trial courts
- Any informal court-established rules
Counsel must comply with the applicable statutes and rules and also must comport himself or herself properly. For
attorney conduct generally, see Ch. 20.
Every litigant has the constitutional right not to be deprived of life, liberty or property without due process of law.
U.S. Const. Amend. 14; Cal. Const. Art. I, §§ 7, 15. Parties to a legal proceeding have the right to notice and an
opportunity to be heard, and the hearing must be fair. State of Cal. ex rel. Dep't of Water Resources (1966) 239
Cal. App. 2d 547, 558, 49 Cal. Rptr. 64. Each party is also entitled to have his or her cause tried and determined
under the same rules of procedure and evidence and on the same principles applied in similar cases. San Jose
Ranch Co. v. San Jose Land and Water Co. (1899) 126 Cal. 322, 326, 58 P. 824.
Although the right to due process requires that fundamental principles of justice not be violated, it does not
guarantee against judicial error, nor does it assure uniformity of judicial decision or guarantee any particular
decision. People v. Reinard (1963) 220 Cal. App. 2d 720, 734, 33 Cal. Rptr. 908.
To ensure that the same rules of procedure and evidence are applied in the trial courts, in 1872 the Legislature
adopted a Code of Civil Procedure, a Civil Code and a Penal Code. In 1965, the Legislature enacted the Evidence
Code, incorporating the law of evidence originally codified in the Code of Civil Procedure.
Code of Civil Procedure. The Code of Civil Procedure is to be interpreted liberally in order to affect its objects and
promote justice. Justus v. Atchison (1977) 19 Cal. 3d 564, 579, 139 Cal. Rptr. 97; Code Civ. Proc. § 4, Code
Commissioners' Notes. While it is advisable to comply literally with its provisions, nothing short of a substantial
departure will be fatal to a proceeding under it. Shinn v. Cummins (1884) 65 Cal. 97, 3 P. 133.
Certain provisions of the Code of Civil Procedure are applicable in criminal prosecutions. As used in the Code, an
"action" includes a proceeding in which a party seeks punishment for a public offense. Code Civ. Proc. § 22. In the
Code of Civil Procedure, actions are divided into two kinds, civil and criminal, and unless it appears that the
particular statute was intended to apply only to civil actions, it applies equally to criminal proceedings. See People
v. Bouchard (1957) 49 Cal. 2d 438, 440-441, 317 P.2d 971.
Evidence Code. The Evidence Code governs proceedings in all actions [Evid. Code § 12(a)] and defines "actions"
to include both civil and criminal proceedings. Evid. Code § 105. Unless otherwise provided in the Penal Code, the
rules of evidence in civil actions are applicable to criminal prosecutions. Penal Code § 1102.
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California Objections § 1:10
California Rules of Court. The California Rules of Court are adopted by the Judicial Council, which has the power
to adopt rules for court administration, practice and procedure which are not inconsistent with statute. Cal. Const.
Art. VI, § 6. These rules have the force of statute to the extent they are not inconsistent with legislative and
constitutional provisions. In re Richard S. (1991) 54 Cal. 3d 857, 863, 2 Cal. Rptr. 2d 2.
A number of rules in the California Rules of Court relate to matters that may arise in the trial of an action, including:
- The form, content and length of papers filed with the court. Cal. Rules of Ct. 2.100 et seq.
- Jury selection and instruction and communications with jurors. Cal. Rules of Ct. 2.1008, 2.1030, 2.1055,
3.1540. For jury selection, see Ch. 2; for jury conduct and management, see Ch. 3; for jury instructions, see
Ch. 22.
- Tentative decisions and statements of decision in bench trials. Cal. Rules of Ct. 3.1590, 3.1591.
- The scope of the pre-trial conference in criminal cases. Cal. Rule of Ct. 4.200.
Local Rules. In addition to the state-wide rules, each court may make rules for its own government so long as they
are not inconsistent with law or with the rules adopted by the Judicial Council. Gov. Code § 68070. Local rules also
have the force of law so long as they do not conflict with constitutional or legislative provisions. Albermont
Petroleum, Ltd. v. Cunningham (1960) 186 Cal. App. 2d 84, 89, 9 Cal. Rptr. 405.
A local rule is any rule, order, policy, form or standard of general application adopted by a court to govern practice
or procedure in that court or by a judge to govern practice or procedure in that judge's courtroom. Cal. Rule of Ct.
10.613(a)(2). Local rules must be published and available for inspection and copying. Cal. Rule of Ct. 10.613(b),
(c). While local rules in certain fields covered by the California Rules of Court are prohibited [Cal. Rules of Court
2.100(a), 3.20], trial and post-trial proceedings may be the subject of formal local rules. Cal. Rule of Court
3.20(b)(1).
Court-Established Rules. In addition to formal rules, the court has the power to adopt an informal practice or
usage, written or unwritten, to expedite hearings, facilitate court business and fulfill more effectively the duty
imposed on it. In re Jeanette H. (1990) 225 Cal. App. 3d 25, 34, 275 Cal. Rptr. 9. The Superior Court has inherent
supervisory and administrative powers to enact its own rules so long as they do not conflict with statutes, case law,
or the California Rules of Court. Ghaffarpour v. Superior Court (2012) 207 Cal. App. 4th 1463, 1468, 136 Cal. Rptr.
3d 544. Unless a statute implicitly reflects a legislative choice to require a particular procedure, a rule may go
beyond the provisions of a related statute as long as it reasonably furthers the statutory purpose. In re Marriage of
Woolsey (2013) 220 Cal. App. 4th 881, 896, 163 Cal. Rptr. 3d 551.
The presiding judge of each superior court has the authority to distribute the business of the court among the
judges and to "prescribe the order of business." Gov. Code § 69508. Assignment of cases is wholly discretionary
and this discretion may be exercised without a formal local rule of court. Alvarez v. Superior Court (2010) 183 Cal.
App. 4th 969, 980, 107 Cal. Rptr. 3d 671 (court policy to transfer cases to a designated judge to approve plea
agreements was proper exercise of presiding judge's authority).
A trial court may adopt its own rules of procedure as long as the rules do not violate due process or statewide rules
of court. People v. Ward (2009) 173 Cal. App. 4th 1518, 1528, 93 Cal. Rptr. 3d 871 (order that defense counsel not
say the words "prosecutorial misconduct" in front of the jury was lawful).
PRACTICE TIP
Know your local rules and the court's practices and procedures. Prior to the pretrial conference, review the
published local rules for matters affecting trial procedures. At the pretrial conference, inform the court that you have
read the local rules, but would like to know if there are any practices or procedures not covered in the rules of which
you should be aware.
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California Objections § 1:10
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California Objections § 1:20
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > I.
Introduction
§ 1:20 Overview
Objections may be directed to the participants in a trial (counsel, judge, jury and witnesses) and to the matters
presented to the trier of fact (argument, evidence, demonstrative exhibits, viewings and jury instructions). With
respect to the participants themselves, counsel may object to:
- The judge assigned to the case. See Ch. 19.
- The prospective jurors called to hear the case. See Ch. 2.
- The conduct of the judge during the trial. See Ch. 19.
- The conduct of the jurors:
- During the trial. See Ch. 3.
- During deliberations. See Ch. 22.
- The conduct of opposing counsel. See Ch. 20. Misconduct by counsel can occur:
- During jury selection. See Ch. 2.
- During opening statement. See Ch. 5.
- During witness examination. See Ch. 7.
- During closing argument. See Ch. 21.
Counsel may object to the evidence presented to the jury for its consideration, including testimony, exhibits and
viewings or demonstrations. An objection is appropriate when:
- The evidence is irrelevant. See Ch. 8.
- The evidence is unduly prejudicial, confusing, or time-consuming. See Ch. 8.
- A witness is incompetent. See Ch. 6.
- A question to the witness calls for evidence of a type prohibited by the Evidence Code, such as:
- Hearsay. See Ch. 9.
- Privileged matter. See Ch. 10.
- Inadmissible character evidence. See Ch. 11.
- Improper opinion. See Ch. 17.
- Improper secondary evidence of the content of a writing. See Ch. 14.
- Parol evidence. See Ch. 15.
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California Objections § 1:20
- An exhibit is inadmissible due to insufficient foundation. See Chs. 12-14.
- A demonstration (including a viewing by the jury) or a demonstrative exhibit is improper. See Ch. 16.
- The matter is not a proper subject for judicial notice. See Ch. 18.
Objections may also be made to the instructions on the law given to the jury by the court. See Ch. 22.
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California Objections § 1:30
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > II.
Making Objections > A. Principles
§ 1:30 Purpose of Objections
Objections have three primary purposes which serve to promote the interests of justice:
- To prevent the trier of fact (the judge in a bench trial or the jury in a jury trial) from hearing or considering
inadmissible or improper matter.
- To promote the orderly and efficient presentation of evidence.
- To preserve the record on appeal.
Objections can also be made for tactical purposes:
- To interrupt or disrupt the orderly flow of evidence, diverting attention from, or lessening the impact of,
damaging testimony or evidence.
- To provide the witness with a "time out" if he or she has become flustered or confused.
- To communicate information to the witness.
Counsel should be vigilant for tactical objections by opposing counsel and, if a pattern is established, seek the
assistance of the court. When opposing counsel repeatedly makes objections which the court overrules, or comes
to the aid of a witness with speaking objections intended to signal the appropriate answer, ask the court to
admonish counsel to refrain from such misconduct. For attorney misconduct generally, see Ch. 20.
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California Objections § 1:40
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > II.
Making Objections > A. Principles
§ 1:40 Exclusion of Improper Evidence
"Evidence" means testimony, writings, material objects or other things presented to the senses that are offered to
prove the existence or nonexistence of a fact. Evid. Code § 140. No evidence is admissible except relevant
evidence. Evid. Code § 350. Except as otherwise provided by statute, all relevant evidence is admissible. Evid.
Code § 351. For relevance generally, see Ch. 8.
Irrelevant or improper evidence may be excluded by the court on objection by counsel. The court may also object to
a question or exclude evidence on its own motion, without the need for an objection by counsel. People v. Sturm
(2006) 37 Cal. 4th 1218, 1239, 39 Cal. Rptr. 3d 799;Gherman v. Colburn (1977) 72 Cal. App. 3d 544, 581, 140 Cal.
Rptr. 330. In addition, the court may exclude or strike out improper evidence it has admitted, even if no motion to
strike is made by a party. People v. Neustice (1972) 24 Cal. App. 3d 178, 190, 100 Cal. Rptr. 783;O'Kelley-Eccles
Co. v. State of Cal. (1958) 160 Cal. App. 2d 60, 65, 324 P.2d 683. For motions to strike generally, see § 1:360 et
seq.
Where an offer of evidence includes both admissible and inadmissible matters, the entire offer may be rejected
upon objection of a party. Eaton v. Brock (1954) 124 Cal. App. 2d 10, 16, 268 P.2d 58. The objection must be
specific in order to allow the proponent of the evidence to meet the objection, such as by redacting inadmissible
portions of a document. Clark v. Bradley (1951) 106 Cal. App. 2d 537, 534-535, 235 P.2d 439. For the need to state
the basis of an objection, see §§ 1:50, 1:130.
In the absence of an objection or motion to strike, all material and relevant evidence admitted during the course of a
trial will be considered in support of the judgment, even when the evidence is incompetent or otherwise
inadmissible. People v. Franz (2001) 88 Cal. App. 4th 1426, 1446, 106 Cal. Rptr. 2d 773.
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California Objections § 1:50
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > II.
Making Objections > A. Principles
§ 1:50 Preserving Issue for Appeal
Ordinarily, failure to make a timely and specific objection on the ground asserted on appeal forfeits the issue on
appeal. People v. Benavides (2005) 35 Cal. 4th 69, 92, 24 Cal. Rptr. 3d 507. This rule is rooted in the nature of the
adversarial system and imposes on each party the duty to look after his or her legal rights and to call the judge's
attention to any infringement. In re Marriage of Freeman (1996) 45 Cal. App. 4th 1437, 1450, 53 Cal. Rptr. 2d 439.
It is unfair to both the trial court and opposing parties to raise a new issue for the first time on appeal. Bonner v. City
of Santa Ana (1996) 45 Cal. App. 4th 1465, 1476, 53 Cal. Rptr. 2d 671.
Although the rule that an appellant is not entitled to raise an issue on appeal that was not preserved in the trial court
is frequently referred to as a "waiver," the correct term is "forfeiture." People v. Demirdjian (2006) 144 Cal. App. 4th
10, 13, 50 Cal. Rptr. 3d 184. The forfeiture rule generally applies in all civil and criminal proceedings. Keener v.
Jeld-Wen, Inc. (2009) 46 Cal. 4th 247, 264, 92 Cal. Rptr. 3d 862.
The appellate court may consider a claim that merely restates, under alternative legal principles, a claim otherwise
identical to one that was preserved at trial and that involves the same facts and a similar legal standard. People v.
Cole (2004) 33 Cal. 4th 1158, 17 Cal. Rptr. 3d 532.
Certain orders and rulings of the court are deemed excepted to, including [Code Civ. Proc. § 647]:
- An order granting a motion to strike evidence or testimony. For motions to strike, see § 1:360 et seq.
- A ruling sustaining or overruling an objection to evidence.
- Any statement or other action of the court in commenting on or summarizing the evidence.
- An order giving, refusing or modifying a requested instruction; see Ch. 22.
All other orders, rulings, actions or decisions are deemed to have been excepted to if the party, at the time the
order, ruling, action or decision is made, or within a reasonable time thereafter, makes known his or her position
with respect to the ruling, by objection or otherwise. Code Civ. Proc. § 647. So long as a party's position is evident
on the record, therefore, it is not necessary to take an exception to a ruling.
Admission of Evidence. To preserve an objection to the erroneous admission of evidence, a party must timely
object or move to strike the evidence, making clear the specific ground of the objection or motion. Evid. Code § 353,
subd. (a). A proper objection, therefore, must be both timely and specific and in the absence of both of these
requirements any claim of error in the admission or exclusion of the evidence is forfeited. People v. Demetrulias
(2006) 39 Cal. 4th 1, 20, 45 Cal. Rptr. 3d 407. For the timeliness of an objection, see § 1:120; for specificity of
objections generally, see § 1:130.
On appeal, a ruling to admit evidence over an objection must be assessed based on the facts made known to the
court at the time the ruling was made. People v. Ramos (2013) 216 Cal. App. 4th 195, 208, 156 Cal. Rptr. 3d 824.
Failure to object to the admission of evidence may not constitute a forfeiture of a claim of error on appeal when:
- The objection would have been futile based on the prior rulings of the trial court. People v. Roberto V. (2001)
93 Cal. App. 4th 1350, 1365 n.8, 113 Cal. Rptr. 2d 804.
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California Objections § 1:50
- A codefendant objects and the objection is overruled before there is a chance to join in the objection. People
v. Gamache (2010) 48 Cal. 4th 347, 373, 106 Cal. Rptr. 3d 771.
- The objection would have been futile due to the state of the law at the time. People v. Chavez (1980) 26 Cal.
3d 334, 350 n.5, 161 Cal. Rptr. 762.
- The party believed that the court would instruct on the legal theory to which the evidence related and the court
erroneously refused to instruct on that theory. Khanoyan v. All American Sports Enterprises, Inc. (1964) 229
Cal. App. 2d 785, 794, 40 Cal. Rptr. 596.
When the court overrules an objection to the introduction of a certain line or character of evidence, a party is not
required to renew the objection each time the evidence is offered. People v. Antick (1975) 15 Cal. 3d 79, 95, 123
Cal. Rptr. 475. The earlier objection may be sufficient to preserve the point for appeal even when evidence is
subsequently introduced without objection, particularly when a "continuing objection" is made for the record. People
v. Fulks (1980) 110 Cal. App. 3d 609, 615 n.5, 168 Cal. Rptr. 203. For the need for further objections generally, see
§ 1:150.
Exclusion of Evidence. To preserve an objection to the erroneous exclusion of evidence, the record must show
that the objecting party made known to the court the substance, purpose and relevance of the excluded evidence,
by the questions asked, an offer of proof or some other means. Evid. Code § 354(a); People v. Benavides (2005)
35 Cal. 4th 69, 94-95, 24 Cal. Rptr. 3d 507. The requirement of an "offer of proof" serves the dual purposes of
giving the trial court an opportunity to change its ruling in the event the relevance of the evidence is not clear and
allowing the reviewing court to assess prejudice. People v. Anderson (2001) 25 Cal. 4th 543, 580, 106 Cal. Rptr. 2d
575;People v. Whitt (1990) 51 Cal. 3d 620, 648, 274 Cal. Rptr. 252. A party is excused from this requirement when
the court's rulings make compliance futile or the evidence was sought by questions on cross-examination or
recross-examination. Evid. Code § 354(b), (c). For offers of proof generally, see § 1:240.
Court's Failure to Rule. When the trial judge fails to rule on evidentiary objections, the objections are forfeited on
appeal. People v. Bolden (2002) 29 Cal. 4th 515, 542-543, 127 Cal. Rptr. 2d 802;Fibreboard Paper Products Corp.
v East Bay Union of Machinists (1964) 227 Cal. App. 2d 675, 698, 39 Cal. Rptr. 64. A tentative decision excluding
evidence is not appealable if a party fails either to request a final ruling or to attempt to introduce the challenged
evidence later in the trial. People v. Samaniego (2009) 172 Cal. App. 4th 1148, 1181, 91 Cal. Rptr. 3d 874. If the
court defers ruling on the theory that the evidence will be properly connected and the evidence is admitted subject
to a motion to strike, a party must move to strike if the connection is not made, or the error will not be considered on
appeal. Ault v. International Harvester Co. (1974) 13 Cal. 3d 113, 123, 117 Cal. Rptr. 812. For motions to strike
generally, see § 1:360 et seq.
Misconduct. Since most acts of misconduct can be cured by a timely admonition by the court to the jury, an
objection and request for admonition is generally required to preserve an issue for appeal. People v. Stewart (2004)
33 Cal. 4th 425, 484, 15 Cal. Rptr. 3d 656. The concern that an objection will highlight the matter does not excuse
the failure to object, because it is the nature of every objection that it draws attention to the allegedly objectionable
material. People v. Foster (2010) 50 Cal. 4th 1301, 1352-1353, 117 Cal. Rptr. 3d 658.
A party is excused from objecting to misconduct or requesting an admonition if either would be futile, and a request
for an admonition may not be required when it would not have cured the harm caused by the misconduct or the
court fails to give a party the opportunity to make such a request. People v. Boyette (2002) 29 Cal. 4th 381, 432,
127 Cal. Rptr. 2d 544. The rule is the same for civil and criminal cases. Cassim v. Allstate Ins. Co. (2004) 33 Cal.
4th 780, 795, 16 Cal. Rptr. 3d 374. For requests for admonitions generally, see § 1:140.
Cases tried pursuant to the Expedited Jury Trials Act (Code Civ. Proc. § 630.01 et seq.) may not be appealed.
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California Objections § 1:60
California Objections > Chapter 1 OBJECTIONS, MOTIONS AND RELATED PROCEDURES > II.
Making Objections > A. Principles
§ 1:60 Appellate Discretion to Review
With the exception of issues involving the admission or exclusion of evidence, an appellate court is generally not
prohibited from reaching a question not preserved for review by a party. Whether it does so is entrusted to its
discretion. People v. Smith (2003) 31 Cal. 4th 1207, 1215, 7 Cal. Rptr. 3d 559; People v. Williams (1998) 17 Cal.
4th 148, 162 n.6, 69 Cal. Rptr. 2d 917. Appellate courts are more inclined to consider belated claims when the
public interest or public policy is involved. In re Marriage of Freeman (1996) 45 Cal. App. 4th 1437, 1450, 53 Cal.
Rptr. 2d 439. When the error is serious and implicates fundamental rights, an appellate court may consider the
claim despite the absence of an objection below. People v. Bradford (2007) 154 Cal. App. 4th 1390, 1411, 65 Cal.
Rptr. 3d 548.
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