Every New Litigator's Worst Nightmare

Plaintiff's counsel showed up for the first day of an anticipated two-day bench trial to determine whether her client had either a prescriptive easement or an easement by necessity over defendant's property -- without which, plaintiff's parcel would be "land-locked" and inaccessible.

In the mind of Judge William Highberger of L.A. County Superior Court, the key piece of evidence was a deed from 1922. Plaintiff had produced a copy of the deed to defense counsel, who had used it as an exhibit to depositions and had questioned witnesses (including defendant) about it.

Plaintiff's counsel assumed that its authenticity was not an issue, and that defense counsel had waived any such objection by using it in depositions. So she didn't get defense counsel to stipulate to its authenticity, she didn't get a certified copy, and she didn't have a witness present who could authenticate it.

Essentially on his own, the judge raised the authenticity issue and ruled the deed inadmissible. He then refused plaintiff's request for a continuance until the next day to allow her to obtain a certified copy. He then invited defendant to move for "judgment" due to plaintiff's failure of proof, and granted the motion.

Plaintiff's post-trial motions were denied, and plaintiff was left with an unusable and potentially worthless piece of real estate, without ever having had a hearing on the merits. All because the judge chose to be an unreasonable stickler that particular morning.

Fortunately, in an unpublished opinion, the California Court of Appeal disagreed today, and reversed him. The concurring and dissenting opinion sets forth the facts in all their gory and disquieting detail. Harker v. Delson Investment Co., No. B174749 (2nd App. Dist., Div. 1).