Monday, March 28, 2016

SJ Evidence Rulings Get De Novo Review

Pipitone v. Williams, No. H041468 (D6 Feb. 23, 2016)

The facts of this wrongful death case are complicated, but they essentially entail a husband’s killing his wife in a domestic dispute. Plaintiff is the Wife’s mother. One defendant is the husband’s father, who is also a doctor, who happened to treat the wife when she suffered an earlier injury that was later discovered to be the result of a prior incident of domestic abuse. Although the Doctor/Father/Defendant claimed not to know that at the time. The other defendant is another doctor who treated the Wife/Decedent for the same earlier injury. The trial court granted SJ on duty and causation.

The procedural issue involves the trial court’s sustaining of a whole bunch of objections to plaintiff’s evidence in opposition. And that issue implicates the standard of review.

Generally, evidentiary rulings are reviewed on appeal under an abuse of discretion standard. Unpacked, that means de novo for legal calls, substantial evidence for factual ones, and non-arbitrariness or unreasonableness of acts of discretion. But summary judgment objections are done on a cold paper record that doesn’t really lend itself to the kind of discretionary calls like those made at a trial. As the California Supreme Court explained in Reid v. Google, Inc., 50 Cal. 4th 510 (2010), “[b]ecause summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors.” Thus, although the Supreme Court didn’t definitively decide the issue in Reid, the court here holds that all evidentiary rulings in the SJ context merit de novo review. 

The court further rules that it can examine the correctness of the trial court’s rulings excluding evidence, even though Plaintiff didn’t expressly challenge them in her opening brief. According to the court, an appellate court’s task in reviewing the grant of summary judgment is to undertake a de novo review of all of the evidence submitted with the papers, except for evidence for which objections were properly sustained, in order to decide whether there are triable issues of fact. Since that standard subsumes the issue of whether evidentiary objections were properly sustained the court finds it appropriate to reach the evidentiary issues even though plaintiff didn’t brief them on her appeal.

Reviewing the objections themselves, the court finds that the court should have considered the declaration of a cop who interviewed the Father, but only to the extent the cop was recounting the Father’s statements. The statements were admissible for their truth as party admissions under Evidence Code § 1220, and also as non-hearsay when offered to only impeach the Father’s deposition testimony. But the testimony was properly excluded as multiple hearsay to the extent it recounted statements the Father had “told law enforcement” but were not made directly to the declarant officer.

And a declaration from the Wife’s sister should also have been admitted, at least to the extent that it recounted her direct observations of the scene where the Father treated Wife for the prior injury.

The trial court, however, properly excluded the expert declaration of a family therapist, who testified that the Doctor “should have had reasonable suspicion” that Wife’s injury was the result of domestic violence. The declaration lacked foundational facts or any reasoned explanation connecting them to the ultimate conclusion drawn by the therapist. If the evidence does not “add up to the opinion rendered” the opinion can be disregarded as purely conclusory. The trial court’s rejection of the same therapist’s opinion testimony regarding the state of mind of the other Defendant/Doctor was also appropriately rejected as lacking “sufficient reasoned explanation to connect” the foundational facts she stated with her ultimate conclusion. 

Finally, Plaintiff also relied on the same family therapist’s declaration to support her assertion that the Defendants’ negligence was the proximate cause of her daughter’s death. But the therapist’s conclusions on this point were largely just that. As the court puts it, the therapist “failed to indicate how she came to these profound conclusions.” Because “[a]n expert’s opinion may not be based on assumptions of fact without evidentiary support, or on speculative or conjectural factors,” the testimony was properly rejected.

Overall, excluding only the testimony properly excluded, the Court of Appeal finds that plaintiff failed to come forward with sufficient evidence to raise fact disputes on duty or causation.


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