Use of Texts on Expert Cross

Paige v. Safeway, Inc., No. A159731 (D1d3 Feb. 10, 2022)

Plaintiff slipped and fell in a rainy Safeway parking lot. She contends that Safeway and its contractors used the wrong kind of paint on the lot’s crosswalks—too slippery. Safeway puts up an expert who testifies that the paint was up to snuff. At his depo, the expert admits that industry standards promulgated by an outfit called ATSM are reliable, albeit not mandatory, sources of authority on transportation design. But at trial, the court granted an in limine precluding Plaintiff from crossing the expert on the ATSM standard because the expert didn’t consider or rely upon the standard in formulating his opinion. The court believed letting the standard come in on cross was an effort to smuggle improper opinion evidence into the record.

That was error. Under Evidence Code § 721(b), cross of experts using a text or publication in the relevant field is limited to three circumstances: (1) the expert referred, considered or relied upon it; (2) it was been admitted into evidence; or (3) it has been established as “a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” If admitted, parts of the publication can be read into the record, but the text itself does not come in as an exhibit. So here, since the expert himself admitted the standard was a reliable authority during his deposition, there was foundation to permit cross under (3).

But although that was error, it was harmless. Crucially, Plaintiff did not put up an expert of her own. And she did not come forward with any evidence that the ATSM standard was, essentially, a mandatory standard of care. So given all the evidence presented by Safeway—including the testimony of its expert and various of its contractor’s employees with significant parking lot painting experience—the Court of Appeal declines to find that, even had the cross been permitted, there would have been a reasonable probability that a different result would have been reached.

Affirmed.

An Object Lesson on the Epistemic Limits of Debt Collectors

Sierra Managed Asset Plan, LLC v. Hale, No. 06-2013-00443856-CL-CC-VTA (Venura App. Div. Aug. 20, 2015) 

In trials in limited civil cases, the parties can submit declarations in lieu of live direct testimony under Code of Civil Procedure § 98. In order to do that, the declarant has to represent that he is available for service of process at an address within 150 miles of the courthouse, so he can be subpoenaed for cross-examination if the other party is so inclined. In this case, the address given by the declarant in this case was a PO box in a store, so the declaration was false and deficient in that respect. The declarant, however, was present at trial and actually cross-examined by the defendant. So the purpose of § 98, if not its letter was met, and there was no prejudice. Under the circumstances, the trial court didn’t err in accepting the declaration.

But the declaration attached various bank documents as business records. The declarant, however, was not an employee of the bank, but of the plaintiff, a collections agent that had taken the matter under an assignment. The declarant thus was unqualified to say anything other than that he had received the documents from the bank. That isn’t enough to lay business records foundation because it doesn’t establish that “[t]he sources of information and method and time of preparation [of the records] were such as to indicate [their] trustworthiness.” See Cal. Evid. Code § 1271. So the documents and related testimony were hearsay that should have been excluded. And since they were the only evidence that the defendant actually owed the debt at issue, their admission was prejudicial.

Reversed.

Kinda reminds me of something I once heard on the radio.

Learn Something New Every Day ...

Legendary Investors Group No. 1 v. Niemann, No. B245620 (D2d4 Mar. 25, 2014)

This is a short—albeit dense—opinion reversing a nonsuit under Code of Civil Procedure § 581c that the trial court granted at the close of plaintiff’s evidence. In discussing the standard, the court mentions that in addressing a nonsuit motion, courts cannot consider defendant-favorable testimony elicited from a hostile witness called by the plaintiff under § 776 of the Evidence Code. (§ 776 permits a party to call on direct and cross-examine a witness affiliated with the opposing party.) Apparently, that testimony is not considered part of plaintiff’s case-in-chief for nonsuit purposes. Did not know that.

Reversed.