Complex litigation and civil procedure frequently intersect, probably because everyone is scrutinizing every crossed T and dotted I in high stakes litigation. Today, the Court of Appeal (Second Appellate District, Division Six) offers not one, but two procedural lessons that are at least as likely to arise in complex litigation matters as they are in the simplest of civil actions.
Our first of two lessons comes from Alvis v. County of Ventura (October 20, 2009). If you have an expert, and he writes a report, and you try to oppose summary judgement with an expert declaration that contradicts his own prior report on a material point, make sure he explains why he changed his tune:
Most significantly, Singh's declaration asserts that the slide started at the bottom of the cliff when the wall failed. This directly contradicts his prior statement in a report to an insurance company that "[f]ailure started as a landslide in the upper reaches and then flowed at a rapid rate down to the developed area below." This is not a minor point. Singh's statement that the slide started in the upper reaches of the cliff directly undercuts the premise on which his entire declaration is based. Yet, Singh offers no explanation.
Slip op., at 15. If the expert had provided a credible explanation for why he altered his opinion, it might have made it past the summary judgment stage.
The next lesson is as much for arbitrators as it is for parties to litigation. Burlage v. Superior Court (Spencer) (October 20, 2009) observes that "[i]t is not often that a trial court vacates an arbitration award and an appellate court affirms the order." Slip op., at 1. Since Moncharsh v. Heily & Blase, 3 Cal. 4th 1 (1992), lower courts have struggled to define the limited circumstances when a trial court can properly review an arbitration award. Burlage concludes that one such circumstance arises when the arbitrator excludes material evidence, denying one contracting party the benefit of the arbitration bargain: "The parties to an arbitration have bargained for a final and binding decision. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 10.) But without the opportunity to present material evidence, Spencer did not receive the benefit of that bargain." Slip op., at 7. Notably, there is a dissent, which argues, in substance, that the exclusion of evidence followed a ruling of law that the evidence was inadmissible, and the accuracy of that ruling cannot be reviewed by the trial court.
Credit goes to Presiding Justice Gilbert for both opinions.