Hearsay and Police Reports

Doe v. Brightstar Residential, Inc., No. B304084 (D2d8 Mar. 10, 2022)

Plaintiff, who is severely mentally disabled, was sexually molested by a handyman at the Facility she lived at. The assailant fled the county and Plaintiff sued the Facility. The trial court granted summary judgment for the facility, finding no evidence that the attack was foreseeable.

Plaintiff did submit evidence on the point in the form of a police report. But the trial court found it was inadmissible hearsay and excluded it.

Police reports are, quite often, inadmissible multiple hearsay. Especially in criminal cases where they create confrontation problems. But that doesn’t always have to be the case in civil cases.

The police report here contained two sets of relevant statements about the Facility’s knowledge of the handyman’s creepiness: (1) statements by the owner of the Facility about his interactions with the handyman; and (2) statements by the Facility’s employees regarding observed interactions between the handyman and the Plaintiff.

Like any multiple hearsay scenario, the key is to look for an exception at each step on the chain. See Evid. Code § 1201. 

As to the first set of statements, the Facility’s owner told the police that the handyman had “a history of loitering around the facility and harassing female employees.” So, at the first level—the owner’s statement to the police—there’s a party admission. § 1220. And then the second level—the officer’s recounting the oral statement in a written report—is a record of a public employee. § 1280. Generally, that exception applies when the writing is within the scope of the employee’s duty, it was made at or near the time of the events recounted in it, and the circumstances of its preparation generally indicate its trustworthiness. Id. The exception is like the business records exception, except that there’s less need to lay a foundation regarding the method in which the document was prepared, because of the presumption that public officers properly perform their duties. Accord § 664. Here, the elements of the exception all apply.

The second group of statements are those of other employees at the Facility. In particular, one employee heard Plaintiff refer to the Handyman as “daddy.” But there are also other similar statements. At the first level—what Plaintiff said to Handyman—the statement is not offered for its truth. It was not offered to show that Handyman, was, in fact, Plaintiff’s daddy, but to show the familiarity between them.

At the second level, the Court finds that the statement from Employees to the officer was offered to show the employees’ (and thus the Facility’s) knowledge of that familiarity, not for its truth. I’m not sure I 100% agree on this point. Isn’t the statement to the officer offered to show that employee actually heard what she heard? Then her knowledge regarding relations between Handyman and Plaintiff is an inference that can be drawn from that piece of evidence?

Like if I heard someone say “I am a rhinoceros.” And then I tell the police that that’s what I heard. It would be offered for the truth of what I told the officer—that I actually heard the declarant say he was a rhinoceros. That’s the case even if the ultimate relevance of what I heard is to provide a basis for an inference that the declarant was not of sound mind. But in any event, the Employees’ statements here, are, in all likelihood, party admissions, so no harm no foul.

And then the third step with the public records is the same.

Reversed.

A Split of Authority on Evidence Code § 1291’s Interest and Motive Test

Berroteran v. Ford Motor Co., No. B296639 (D2d1 Oct. 29, 2019)

Evidence Code § 1291 creates a hearsay exception for “former testimony,” which includes deposition testimony taken in a different case. Under § 1291(a)(2), former testimony is admissible when the witness is unavailable and the party it is offered against was also a party to the prior action. But crucially, that party must have had “the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he was at the hearing.”

This case is one of a large number of cases alleging that a diesel engine in certain Ford trucks was defective. Ford moved in limine to exclude the videotaped depositions of nine current and former Ford employees. The deposition transcripts appear to reflect that Ford took no re-direct testimony. But Ford it did not submit any other evidence in connection with its motion. Instead, it relied on Wahlgren v. Coleco Industries, Inc., 151 Cal. App. 3d 543 (1984), which held that because a deposition is primarily a discovery device, a party never has the same motive to examine his own witness as at trial, so depositions from other cases don’t come in under § 1291. The trial court agreed and plaintiff took a writ.

The question is whether, during the earlier depositions of its employees, Ford had “an interest and motive similar” to that it has at the impending trial. Parting ways with Walhgren, the court finds it did and grants a writ.

Relying principally on the Law Revision Commission’s commentary from when the statute was proposed and enacted, Wahlgren held that the interest and motive analysis “should be based on practical considerations and not merely on the similarity of the party’s position in the two cases.” The court recognized that because a deposition is primarily a discovery device, “[a]ll respected authorities, in fact, agree that given [a deposition’s] limited purpose and utility, examination of one’s own client is to be avoided.” Thus, the party’s motive to examine one of its officers during a deposition was not similar to its motive to do so at trial.

The Court here, however, disagrees. Citing several federal cases interpreting a textually similar requirement in Federal Rule of Evidence 804, the Court explains that a party’s “tactical or strategic incentive” is not the crux of the interest and motive analysis. Instead, the Court compared the similarity of the issues in the prior litigations with those at issue here. Finding the overall issues similar, notwithstanding minor differences, the Court finds that “Ford had a similar motive to examine each of the nine deponents.” In a footnote, the Court refers to the Law Revision Commission commentary relied upon by Wahlgren as a “partial legislative history,” and declines to address it because Ford did not “proffer any evidence that there was a strategic reason for not cross-examining its witnesses[.]” 

Writ granted.

This seems a little off to me. The reason Ford didn’t examine its witnesses in the earlier cases should be pretty obvious. For the most part, no lawyer examines his or her own witness at a deposition if they are available to testify at trial. At most, you might clarify an ambiguity or two so the record is clear for summary judgment. But taking a non-leading direct in a deposition can be pretty hard. Why give free testimony or a chance for the witness to mess up when you can just use a declaration for summary judgment and have the witness testify at trial? For whatever reason, Ford apparently didn’t see the need to put that in a declaration. It could just be that with Wahlgren in the pocket, Ford didn’t find it necessary.

But contrary to what the court implies, I do think tactical considerations matter. If the Legislature wanted to say that prior testimony is admissible when the party it is offered against was able to cross and the cases and testimony presented similar issues, it could have done that. Instead, it chose the words “interest and motive.” In ordinary English, a party’s motive is its subjective rationale for doing something. I don’t see how a party’s tactical decision regarding the utility of an examination—and indeed a tactical decision almost any lawyer would make under similar circumstances—wouldn’t inform its “motive” as that word is used in § 1291.

The Legislature clearly thought it should. As you might be able to glean from “he”-only gendering in § 1291, this is not a brand new statute. It was enacted in the original 1965 codification of the Evidence Code. (Here, at p. 433 of the .pdf.) Contrary to the characterization in the Court’s footnote, the Law Revision Commission Report that accompanied its enactment is no ordinary piece of “partial legislative history.” As this particular report (available here) explains, “[t]hese Comments are especially significant because of the consideration of them by the legislative committees that considered the code.” When, like here, the Law Revision Commission proposes a comprehensive codification of a body of law, and then that proposal is adopted by Legislature, its commentary is entitled to “substantial weight.” Carmack v. Reynolds, 2 Cal. 5th 844, 852 (2017).

Pardon the block quote, but this is pretty on point:

On the other hand, paragraph (2) does not make the former testimony admissible where the party against whom it is offered did not have a similar interest and motive to cross-examine the declarant. The determination of similarity of interest and motive in cross-examination should be based on practical considerations and not merely on the similarity of the party’s position in the two cases. For example, testimony contained in a deposition that was taken, but not offered in evidence at the trial, in a different action should be excluded if the judge determines that the deposition was taken for discovery purposes and that the party did not subject the witness to a thorough cross-examination because he sought to avoid a premature revelation of the weakness in the testimony of the witness or in the adverse party’s case. In such a situation, the party’s interest and motive for cross-examination on the previous occasion would have been substantially different from his present interest and motive.

So, regardless of what federal cases interpreting the Federal Rules of Evidence (which weren’t enacted till 10 years later) might suggest, in California, motive should mean motive. 

Of course, there are times when a party-affiliated witness might not be available for trial. Like if she is about to retire and move to Florida, and can’t be coaxed back. In those cases, it makes sense to examine the witness at a deposition. And there, you have the same motive as at a trial. 

So, Wahlgren, which was decided before depositions were regularly videotaped, might have missed the fact that a deposition (especially a videotaped deposition) can sometime be used as trial testimony device. To that extent, the opinion could be overbroad if it states a per se rule. But the suggestion here—that a tactical choice not to examine an affiliated witness who will appear at trial is irrelevant to motive—is overbroad too.

And in any event, none of this probably matters because all of these witnesses testified as current or former employees of Ford addressing issues within the scope of their employment, many of them as persons most qualified. It is thus highly likely that the testimony should have come in anyway as party- or authorized admissions under §§ 1220 or 1222.

K and Stuff Testimony Flummoxes Hearsay Ruling

Hart v. Keenan Props., Inc., No. A152692 (D1d5 Nov. 19, 2018)

The trial in this asbestos case presented a classic product ID question: Was the Defendant the distributor of asbestos-containing pipe product that Plaintiff used on jobs where he worked as a pipe layer? The evidence was thin. Plaintiff knew the pipes were asbestos cement pipes made by a particular manufacturer. But he didn’t know the distributor. And there were no records from the time to show that Defendant was, in fact, the distributor.

Public Forum Questions Under CCP § 425.16(e)(4)

Ralph’s Grocery Co. v. Victory Consultants, Inc., No. D070804 (D4d1 Nov. 15, 2017)

The trial court in this case granted an anti-SLAPP motion, dismissing a case where a grocery store sued paid petition signature gathering company for trespassing when it gathered signatures right outside the entrances to two grocery stores in San Diego. 

Dispelling the “Binds the Company” PMQ Canard

RSB Vineyards, LLC v. Orsi, No. A143781 (D1d3 Sept. 29, 2017)

In this real estate warranty case, the court affirms a summary judgment in favor of a seller because it didn’t actually know about the defects in the property and thus made no warranty about them. So far as I can tell, all well and good from a real estate perspective. But I’m not here to write about that stuff.

There is, however, a little procedural nugget. Plaintiff’s person-most-qualified witness testified at her deposition that Plaintiff wasn’t aware of any information to suggest that Defendants’ were aware of the defects before the sale. Defendant claims that testimony is a “binding admission” on the fact of the Defendants’ unawareness. But, although there’s not a ton of detail in the analysis, the court here says it’s not.

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.

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.

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.