Prooving up an Adpoted Admission as a Hearsay Exception

Koussaya v. City of Stockton, No. C089159 (D3 Sept. 21, 2020).

This case has crazy facts involving a bank robbery, hostages, a high-speed chase, and a firefight where the cops eventually killed everyone on the scene, including one of the hostages. Plaintiff, who correctly surmised the SWAT team in pursuit was going to blaze into the escape vehicle as soon as it was stopped, jumped out of the car when it was moving at a very high speed. She survived, but was hurt badly. She sued the cops and the city on various theories. The trial court granted summary judgment for defendants, and the Court of Appeal affirms.

Personally, the merits of the SJ seem debatable. But that is best left for civil rights lawyers. The Court of Appeal, however, does find that the trial court erroneously excluded some hearsay, albeit harmlessly. The City’s Chief of Police had requested that an outfit called the Police Foundation to prepare a report about the way the incident was handled. The Foundation’s report made some findings that were critical of the way the police handled the incident. The City objected to admission of the findings on hearsay grounds, which the trial court sustained.

That was error. The adoptive admission exception to the hearsay rule renders an out-of-court statement admissible for its truth when “the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Evid. Code § 1221 (gendered language original). Here, the Chief of Police admitted during his deposition that he said he agreed with the report during a press conference. And while the press conference statement was also out of court, that was only admitted for the fact that it had been stated, not that it was true. Section 1221 does not require the adoption to be subjectively believed, just “manifested.”

FWIW, the last point seems a little unnecessary, for two reasons. First, deposition testimony about something that the witness said out of court is still deposition testimony. So generally, regardless of a hearsay issue, it is admissible under Code of Civil Procedure § 2025.620. But the substance of the depo testimony isn’t 100 percent clear. If the Chief denied agreement with the report during the deposition, but admitted he made the press conference statement otherwise, I guess the not-for-the-truth point might be more germane.

Second, although the foundational facts to establish a hearsay exception need to be proven up to the court under Evidence Code § 405, that proof can likely be based on inadmissible evidence. California law doesn’t seem super clear on the issue, at least not anywhere I could find in some basic research. But the Federal Rules of Evidence are explicit about it. See Fed. R. Evid. 1101(d)(1) (“These rules . . . do not apply to . . the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility”). There doesn’t seem to be strong policy reason why California state law would be otherwise.

Affirmed.