Foundation!

Gamboa v. N.E. Cmty. Clinic, No. B304833 (D2d7 Nov. 30, 2021)

This is an appeal of the denial of a motion to compel arbitration. But it is really about a basic point of evidence.

A party seeking to compel arbitration bears the burden of proving that “an agreement to arbitrate the controversy exists[.]” Code Civ. Proc. § 1281.2. As the Court explains here, that’s done on a motion, using a three-step process. First, the moving party needs to come forward with a prima facie case that an agreement to arbitrate exists. Usually that entails attaching the agreement to the petition. At that stage, there’s no formal evidentiary requirements, such as a requirement to authenticate the contract. Second, if a prima facie case is made, the opposing party needs to come forward with evidence that there was no, in fact, an agreement. And then if that happens, the framework falls away and the movant needs to prove the existence of an agreement by a preponderance of the evidence. 

Here, the movant (an Employer) submitted a declaration of its HR Director with its motion. The declaration stated, in a conclusory manner, that the opponent (an Employee) signed an arbitration clause as part of her employment agreement, and purported to attach a contract containing an arbitration clause that appeared to be signed by a representative of the Employer and an Employee. Employee, however, put in a declaration stating that she had never seen the contract, that she had no recollection of discussing arbitration, and that she would not have signed an arbitration agreement if she had seen it and it were explained to her. Employer did not put in a supplemental declaration with its reply.

Employee objected to the HR Director’s declaration on foundation grounds, which the trial court sustained. It then found that Employer failed to meet its burden to prove an agreement, and thus denied the motion. Employer appealed.

I’m hunching that there’s a pretty good chance that Employee really did sign the document that Employer submitted. Her declaration notably did not deny that it bore her signature, which is something she would ordinarily say if she could. (As a jury instruction given in every case explains, when “a party provided weaker evidence when it could have provided stronger evidence,” the trier of fact can “distrust the weaker evidence.” See CACI 203.)

In an ordinary litigation, this could have been cleared up with a single request for admission or depo question: Is that your signature? But what makes a motion to compel arbitration tricky is that the moving party generally needs to forego taking any discovery, because taking discovery risks waiver of the right to arbitrate. So, once Employee denied being party to the contract, Employer here couldn’t rely on the most common rejoinder: that notwithstanding her recollection, she had signed the document.

The Court notes, however, that Employer didn’t need to authenticate the signature to authenticate the document. What it did need to provide was admissible evidence that the contract was authentic and that Employee was party to it. So, for instance, a declaration from a custodian of records that says:

I am the Head of HR at Employer. I am aware of Employer’s record-keeping practices when it comes to employment documents. Accurate maintenance and updating of personnel files is a requirement of my employment duties and the duties of those who report to me. Employer requires all employees to sign Employment Agreements, which include an arbitration agreement. It then provides the Employee with a copy and puts the original of the signed agreements in the employee’s personnel file. The Employment Agreements of other employees would not be contained in that file. I accessed Employee’s personnel file and obtained a copy of an Employment Agreement, which appears to have been executed by Employee and a representative of Employer, a true and correct copy of which is attached as Exhibit A.

But what Employer did, instead, was:

I am the head of HR at Employer. Employee signed an Employment Agreement containing an arbitration clause when she was hired, a true and correct copy of which is attached as Exhibit A.

See the difference? We have no way of knowing how HR Head knows Employee signed the contract. Did she see her? Did Employee admit it? Was HR Head’s knowledge based on some unstated record keeping practice? Without that information, we don’t actually know that HR Head knows. 

That’s what trial lawyers call foundation. Under Evidence Code § 403(a)(2), you need to provide the preliminary facts that establish a witness’s personal knowledge of the subject matter of her testimony. Otherwise, the testimony is rendered inadmissible under § 702(a). It is not an incredibly heavy burden. Personal knowledge does not need to be proven—there just needs to be enough evidence to give the trier of fact a basis to find that the witness does, in fact, know of what she speaks. And notably, § 702(a) specifically says you don’t need to lay that foundation until someone objects. (Otherwise, trials would be incredibly tedious.) So Employer could even have fixed it on reply with a supplemental declaration. 

But it didn’t. So Employee gets her day in court.

Affirmed.

The Baral-Park 1-2 . . .

Newport Harbors Offices & Marina, LLC v. Morris Cerullo World Evangelism, No. G054146 (D4d3 May 9, 2018) 

This is a long-running real estate litigation over a sublease to an office building in the OC. There have been four different appeals in the case, including a trip to the Supreme Court last year. Most of them are disputes over anti-SLAPP motions. This one is too.

Seven Service Options, None Good, Doesn't Cut It Under CCP § 98.

Midland Funding, Inc. v. Romero, No. JAD16-06 (Orange Cnty. Super. App. Div. Sept. 6, 2016)

Code of Civil Procedure § 98 permits, under certain conditions, a party in a limited civil case to offer a declaration in lieu of a witness’s direct testimony. Plaintiff—some kind a debt collector—offered such a declaration by one of its officers, purporting to attest to its acquisition of Defendant’s account and to lay give foundation that certain documents were admissible business records. The declaration agreed to accept service of a trial subpoena at any one of seven locations, several of which were more that 150 miles from the courthouse and others of which were “c/o” addresses, presumably acceptable for substitute but not personal service. The trial court let the docs in over Defendant’s objection and Defendant appealed to OC Superior’s App Div.

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.

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.

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.