Tuesday, June 14, 2016

The Downside of Ignoring in Limine Rulings

Osborne v. Todd Farm Serv., No. B260280 (D2d6 May 2, 2016)

Plaintiff was injured when an allegedly defective hay bale she was standing on fell apart. She sued two Defendants—the Supplier and a company she claimed had manufactured the bale. None of the records in the case identified the source. And while there are apparently features of hay bales that would clue one into where they were manufactured, that would require expert testimony. Plaintiff, however, didn’t timely disclose a hay source expert under Code of Civil Procedure § 2034.260. She instead waited and designated herself as a “supplemental” expert under § 2034.280. But as Fairfax v. Lords, 138 Cal. App. 4th 1019 (2006) explains, that’s a no-no. You can’t sandbag in disclosing experts as “supplemental” if you had every reason to anticipate that they would be needed in at the time of the original disclosures. So the trial court struck her designation.

Defendants then filed a motion in limine to prevent Plaintiff from giving opinions (lay or expert) that the bale came from Manufacturer during her trial testimony. They similarly moved to exclude as hearsay testimony from Plaintiff to the effect that she knew about the source of the say because the Supplier’s delivery guy told her or that she read it on an invoice from Supplier that was never found in discovery. The court granted both.

Plaintiff’s lawyer then proceeded to ignore the rulings throughout the trial. He spoke about in his opening statement. And he asked about it in his direct examination of Plaintiff. Several times. All along, over sustained objections from defendants and repeated warnings from the court. After which the trial court had enough and dismissed the whole case—against both defendants—with prejudice as a sanction for “for flagrant and repeated violations of the the Court’s order.”

Plaintiff appeals both the in limine rulings and the sanction. The court disposes of the in limine rulings pretty quickly.

On opinion testimony, as I said, the law is pretty clear that you can’t designate a “supplemental” expert on a topic for which you knew all along you were going to need an expert. Nor could plaintiff give lay opinion on the issue, because the growing source of an agricultural product like hay is not an appropriate subject for that.

The hearsay ruling is even briefer. The court says that there was no evidence that Supplier’s delivery person was authorized make any statements on supplier’s behalf, so the statement can’t be an authorized admission under Evidence Code § 1222. Moreover, delivery person was certainly not an agent of the Manufacturer, against whom the statement was principally offered.*

On the other hand, Plaintiff’s testimony about the receipt was excludable for failure to authenticate the document under Evidence Code § 1401. According to the Court, although plaintiff testified about the source of the receipt, the delivery company’s witness claimed never to have seen the document, and the trial court was entitled to discount the former and credit the latter in finding that Plaintiff hadn’t laid adequate foundation for authenticity under Evidence Code § 403(a)(3).**

So far as the sanction goes, the record showed that Plaintiff’s lawyer ignored the court’s rulings multiple times. The court clarified its rulings three separate times and reputedly warned the lawyer that continuing to ignore the court’s rulings would have consequences. All along, Plaintiff’s lawyer reacted by pretending that he didn’t understand what he was doing wrong. Based in part on an implied finding that the trial court didn’t find the lawyer’s explanations credible, and thus that the misconduct was deliberate, the court upholds the dismissal. It notes that although the misconduct was directed towards the Manufacturer, dismissal of both Defendants was appropriate. Plaintiff’s tactics at trial gave the jury the impression that both defendants had something to hide, which prejudiced the Supplier as well and the Manufacturer. And in any event, the court hods that “[i]n a multi-defendant case, there is no rule requiring that misconduct must relate to a specific defendant as a prerequisite to a terminating sanction as to that defendant.”


*The cited statute—Evidence Code § 1222—creates a hearsay exception for statements “authorized by the party to make a statement or statements for him concerning the subject matter of the statement.” It is more or less equivalent to Federal Rule 801(d)(2)(C), which excludes from the definition of hearsay a statement “made by a person whom the party authorized to make a statement on the subject.” California courts treat “authorization” requirement reasonably liberally, holding that it can be implied by the nature of the declarant’s position, such that so long as the declarant is reasonably important, the statement usually comes in. See O’Mary v. Mitsubishi Elecs. Am., Inc., 59 Cal. App. 4th 563, 569 (1997).

California also has a pure party admission statute—Evidence Code § 1220—that provides an exception for a statement where the declarant is “a party in either his individual or representative capacity.” It more or less tracks the language in Federal Rule 801(d)(2)(A).

But what California does not have is a statute that tracks Federal Rule 801(d)(2)(D), which expressly makes a statement of a party’s agent non-hearsay, so long as the subject matter is within the scope of the agency. Under that rule, the delivery guy’s statement probably comes in, at least against the Supplier. But without it, there’s a big question as to what “party” means in § 1220 when the party is an artificial entity, like the Manufacturer here, a corporation. For a corporate party, does § 1220 apply only to official corporate communications, like regulatory filings or statements on the company website? Or does “party” connote some broader scope of declarants, in recognition of the fact that a corporation or LLC doesn’t actually have a mouth?

Seems like an important question. Yet there is strikingly little on it in the case law. A few cases suggest (without much reasoning) that an important officer can speak for the company under § 1220. But they also cite § 1222, and their facts are such that the reasoning in O’Mary would put them under § 1222 anyways. See Greenspan v. LADT, LLC, 191 Cal. App. 4th 486, 523 (2010); L.A. Cty. Flood Control Dist. v. Mindlin, 106 Cal. App. 3d 698, 713 (1980). But what about when you have an agent, who is not the kind of important officer who would have implicit authority to speak on the company’s behalf, but who says something relevant to his job duties? Shouldn’t that come up all the time?

**I really don’t follow the foundation/authenticity point. Under Evidence Code § 403, all you need to lay foundation for the authenticity of a document is evidence that—if credited by the trier of fact—would be sufficient to sustain a finding that the document is, in fact, what it purports to be. The § 403 standard—akin to SJ, nonsuit, or JNOV—does not entail any weighing of evidence. See Legrand v. Yellow Cab Co., 8 Cal. App. 3d 125, 133 (1970). So it’s not clear why the court could have excluded the testimony about the receipt based on Evidence Code § 1401 because it believed Supplier and didn’t believe Plaintiff.

That said, plaintiff here is offering oral testimony about the contents of a document that is not itself (or even a copy) being offered into evidence. That testimony is inadmissible under Evidence Code § 1523(a) unless one of the exceptions in § 1523(b)-(d) apply. As those exceptions deal with issues like lost documents or documents that can’t be subpoenaed, they don’t appear to be established here. And even if a § 1523 exception could be established, § 1521(a) permits exclusion if there is a dispute about the writing’s contents and justice requires it or more generally if its admission would be unfair. So that likely provided ample grounds to exclude the testimony.

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