Appeals Court Gets It: Lower Courts Have Been Corrupted

On Summary Judgment, Judge Gets a Spanking
The Recorder by Mike McKee - October 13, 2009

It isn't a good sign when an appeals court refers to a lower court's "ruling" in quote marks as if it's not worthy of the term. But that's exactly what San Francisco's 1st District Court of Appeal did -- three times -- Friday in reversing a "ruling" by San Mateo County Superior Court Judge Marie Weiner in an overpapered case featuring 5,415 pages of briefs. "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard," Justice James Richman wrote in a published ruling in Nazir v. United Airlines Inc., A121651. Richman, along with Justices Paul Haerle and James Lambden, said Weiner was "manifestly wrong" in sustaining "without explanation" 763 of the defendant's 764 objections to plaintiff Iftikhar Nazir's evidence in a suit alleging harassment and retaliation based on ethnicity.

"What apparently happened," Richman wrote, "is that the trial court did not read all the papers, shown, for example, by the facts that it sustained 'objections' to evidence where no objection was set forth and saw a 'physical assault' ... despite all the evidence of 'arm wrestling.'" Not reading papers "cannot be condoned," he added, but could possibly be "understood" considering the sheer volume of papers filed by both sides. Richman noted that the summary judgment process has come under criticism in cases where courts have made findings "properly reserved" for trial and required employees to essentially "prove their case" at the summary judgment stage. "Here we confront the poster child for such criticism," he wrote, "in a case involving what may well be the most oppressive motion ever presented to a superior court." Pointing out that the defendant's moving papers for summary judgment were 1,056 pages and the plaintiff's response three times that length, Richman called the record "the likes of which we have never seen -- not here, not in the combined 11 years of law and motion experience of the members of this panel." "Suffice to say that there is plenty of blame for the 'girth' the trial court criticized," Richman wrote, "most of which, we conclude, lies at the feet of the defendants." Richman criticized United's lawyers for filing a "defective separate statement" and, in a footnote, pointed out that the airline's lead counsel had been faulted for the same thing in a 2004 6th District ruling. Listed as United's lawyers in the 1st District case were Littler Mendelson partners Philip Ross, Nancy Pritikin and Kurt Bockes. The plaintiff was represented by Philip Horowitz and Moira McQuaid.