Monday, February 3, 2014

Evidentiary Musings

Cheal v. El Camino Hospital, No. H036548 (D6, as modified Feb. 14, 2014)

This is an appeal that reverses a grant of a summary judgment in an employment retaliation case. Most of the substance deals with employment law issues. But there are some interesting tidbits on evidence in the footnotes where the court repeatedly reverses evidentiary calls made by the trial court.

FN2: The court holds that given plaintiff’s twenty one years of employment with defendant, her declaration that a document was a true and correct copy of the defendants’ policy on a matter within the scope of her employment was sufficient foundation to authenticate the policy.

FN3: The court reverses a sustained hearsay objection where plaintiff contended that her supervisor had admitted that other employees made the same mistakes plaintiff was purportedly terminated for. Because the supervisor was authorized to speak on the issue, the statement was admissible as an authorized admission under Evidence Code § 1222. 

FN6: The court reverses a sustained hearsay objection where the statement involved—an accusation that plaintiff made a mistake—was offered not for the truth of what was said, but for the fact that plaintiff was falsely accused.

FN7: Similarly a hearsay objection should not have been sustained where the statement was offered to impeach the veracity of information about the statement that the supervisor had written down in business records.

FN8: The court reverses the exclusion of evidence on a relevance basis where the employer opened the door to the relevance of certain facts and then made relevance objections to statements that contradicted its version of the events because it allegedly did not rely on them. Good quote: 

  •  “A party cannot open the door to an issue in an effort to portray events in a particular light and then slam the door shut on his opponent merely by asserting that he does not really place any reliance on the matters thus introduced. Having suggested that plaintiff bore responsibility for a series of injurious errors, defendant could not exclude, on relevance grounds, controverting evidence. The trial court erred in allowing itself to be trifled with in this manner.”
FN9: The court reverses the sustaining of a secondary evidence objection based on deposition testimony regarding the content of the witness’s timecards. The time cards themselves could come in as business records or past recollection recorded with proper foundation. Another good quote: 
  •  We do not believe a curable objection going merely to the form of evidence should be allowed to play a dispositive role in securing summary judgment. It benefits no one but the original defendant to dismiss a substantively meritorious action for damages only to generate a new action for legal malpractice.”
Finally, in the body of the opinion, the court addresses a double hearsay problem involving a witness’s declaration that the supervisor admitted to the witness that she was biased in favor of younger and pregnant workers. Obviously, such a statement would be a key admission in an employment discrimination case. While recognizing that this is technically a hearsay-within-hearsay problem, the court did not find it problematic.

As to the first layer—the declaration—although a declaration is hearsay, it is a kind of hearsay that is specifically permitted in the summary judgment context in lieu of live testimony.  See Cal Code Civ. Proc.
§§ 2009, 2015.5.

As to the statement itself, the court first questioned whether the statement could be an authorized admission under Evidence Code § 1222 because it seems unlikely that the supervisor was authorized to admit that she was discriminating against a protected class of employees.

As an aside, it’s worth noting here that the California Evidence Code does not contain a clear “agent’s admission” exclusion or exception from the hearsay rule along the lines of Federal Rule of Evidence 801(d)(2)(D). Although Evidence Code § 1220 admits a party’s admission, the law is not all that clear when a corporate “party” is itself speaking to come within the rule. Presumably, this could be filled in by reference to the substantive law of agency, see generally Cal. Civil Code § 2330, but there aren’t any cases that clearly address the point. So, the closest the Evidence Code comes is § 1222, which is an authorized admission rule akin to Federal Rule 801(d)(2)(C). This all makes things a little tricky when, like here, a corporate party’s agent makes admissions addressing topics within the scope of her agency but on which she is not clearly authorized by the party to speak.

While some courts have tried to bridge California
s lack of an agent’s admission rule by treating the concept of authorization elastically to fit the demands of justice, see, e.g., O'Mary v. Mitsubishi Elecs. Am., Inc., 59 Cal. App. 4th 563, 570–75 (1997), the court here decides it doesn’t need to do that. Because, in any event, the supervisor’s statement was admissible as a declaration against her interest under Evidence Code § 1230. Relying on analogous federal authority, the court reasons that the supervisor’s admission that she bore discriminatory intent could injure her standing with her employer and thus creates a risk of future economic loss. Because the admission potentially jeopardized the supervisor’s career prospects, it was against her pecuniary interest and thus fell within the hearsay exception in § 1230. Furthermore, because California imposes individual supervisor or coworker liability for some workplace torts—including harassment based on membership in a protected class, Cal. Gov. Code § 12940(j)(3)—the statement was also against the supervisor’s legal interests, as it potentially exposed her to a not insignificant risk of civil liability. The trial court thus abused its discretion in sustaining the employer's objection to the statement.


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