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.

Motive and Interest Under EC § 1291

Berroteran v. Superior Court, No. S259522 (Cal. Mar. 7, 2022)

This is Supreme Court decision regarding when deposition testimony taken in a different case is admissible at trial the former testimony hearsay exception under Evidence Code § 1291. I pretty much called the holding here in my write up of the 2019 decision of the Court of Appeal. The takeaway is that deposition testimony from prior cases is not likely admissible at trial, but that is not a per se rule of exclusion. 

Admissibility under § 1291 depends on whether the party against whom the testimony is offered had “the right and opportunity to cross-examine the declarant with an interest and motive similar to that which” the same party will have at the present trial. § 1291(a)(2). Here, examining, in particular, the Law Revision Commission’s official commentary, as well as practical advice in practice guides, the Court explains that the non-noticing party of a discovery deposition will rarely have the same interest and motive as it will at trial. That’s because, most of the time, and especially for party-affiliated witnesses, the non-noticing party has no interest in asking questions at a discovery deposition. 

Interestingly, the Court sets out a framework for how to decide otherwise. It creates a three-step test, the third step of which is its own multi-factor balancing test. 

Here's a flowchart, if you are into that kind of thing:

Court of Appeal reversed.

Well, I Read Some Documents Once

Chambers v. Crown Asset Mgm’t, LLC, D0079074 (D4d1 Nov. 12, 2021)

This is an appeal of a denial of a motion to compel arbitration in a dispute between a Consumer and a credit card Provider. Provider claims that it mailed Consumer an arbitration policy that said if Consumer thereafter used the card, she consented to arbitration. To support this assertion, Provider put in a declaration from an employee attesting that she had reviewed Provider’s business records, and they showed Consumer had been mailed a copy of the agreement and failed to object. 

Two problems with that. 

First, the employee’s declaration didn’t put in the work to show that the records she reviewed were, in fact, within the business records exception to the hearsay rule. In particular, she didn’t attest to the way the records were created or maintained in the course of the company’s regular operations, or even to Provider’s custom and practice regarding the way such records were created.

Second, the secondary evidence* rule does not save Provider from the fact that it failed to actually attach any of the records that were the subject of the attestation. The secondary evidence rule requires that the documents that are the subject of oral testimony must be otherwise admissible. Since Provider failed to lay the necessary foundation to establish that the records, what ever they were, were subject to a hearsay exception, the testimony was just another level of unexcepted hearsay.

Affirmed.

*FWIW, the secondary evidence rule, California’s version of the best evidence rule, is fundamentally indeterminate and arbitrary. Unlike the federal rule, which presumes that, absent specified reasons, oral testimony about the contents of documents does not come in, see Fed. R. Evid. 1002, 1003, 1004, the California rule presumes that oral testimony is admissible. See Evid. Code § 1521. The testimony is inadmissible only if there is a dispute about the contents and “justice requires the exclusion” or if admitting it would be “unfair.” Those are hardly bright line standards that can be uniformly applied. And practically, it seems like, in an age where most records are electronically created or stored, you should need to come up with a good reason why you can’t attach a document before someone can just attest to it in a declaration. Otherwise, the standard is in the eye of the beholder.

The Epistemology of Expertise

Strobel v. Johnson & Johnson, No. A159609 (D1d4 Oct. 21, 2021).

Since I became a lawyer, there have been two things I have always gone out of my way to avoid having any understanding of—ERISA and asbestos. This case deals with the latter. But it’s got an interesting evidentiary issue. So I’ll muddle through despite all the death and mineralogy. Just don’t tell anyone.

The main issue is about experts and hearsay. If you think about it, what we consider to be expertise is often largely a compilation of hearsay. We read lots and lots of books and sooner or later we know some stuff. I know what happened in Brown v. Board of Education because I read the opinion and commentary about it, not because I was in the courtroom observing with firsthand personal knowledge. And I know what’s in Code of Civil Procedure because I read my gold book and Witkin, not because I sat with the Assembly and watched the Governor sign the bills. And so it is with the kinds of folks who offer opinion testimony about whether some product had asbestos in it in 1964. 

If experts can’t testify to some hearsay, they could often offer little more than their unadorned opinions, which would not be very useful to the trier of fact. On the other hand, an expert shouldn’t be used as a vehicle to smuggle otherwise inadmissible hearsay into the jury box. The California Supreme Court addressed this issue in a criminal case called People v. Sanchez, 63 Cal. 4th 665, 670 (2016). 

In Sanchez, the Court explained that under Evidence Code §§ 801(b) and 802, an expert could provide “testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field” without running afoul of the hearsay rule. But “[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.” 

So in Sanchez, the expert’s testimony that he relied on someone else’s having designated the defendant as a gang member was inadmissible hearsay that should not have been admitted into evidence. Later cases illustrate that the distinction lies around whether the alleged hearsay is the kind of non-case-specific background material that an expert in the field would ordinarily rely on. Compare People v. Veamatahau, 9 Cal. 5th 16, 26 (2020) (reliance on database to identify pill based on marking admissible) with People v. Valencia, 11 Cal. 5th 818 (2021) (expert’s testimony that defendant had committed prior offenses qualifying for enhancement was inadmissible hearsay).

Here, in support of his opinion that some mid-century baby powder contained asbestos, the plaintiff’s expert offered declaration testimony about testing of historical samples of the same powder at issue conducted by some other expert who did not testify in the case. The court here says that runs afoul of Sanchez. You can’t use an expert’s ability to testify on what he or she relied on to sneak in opinion testimony from some other undesignated expert who is not subject to cross.

The Court holds, however, that even without the hearsay, the expert relied on enough reasonable material to apply his expertise to submit an opinion that, if believed, could support a finding that there was asbestos in the power. So his declaration was adequate to defeat summary judgment.

Reversed.

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.

 

 

 

Trademarks and Testimony

Hart v. Keenan Props., Inc. No. S253295 (Cal. May 21, 2020)

I thought the Court of Appeal opinion on this one was kind of hinky when I wrote on it back in 2018. The Supreme Court granted review, and agrees. Justice Corrigan’s unanimous analysis on the hearsay issue is a little different than mine, but it gets to the same place. 

Basically, the issue is whether a construction foreman could testify about seeing a logo on a bill for asbestos-containing pipe for product ID purposes. The trial court let it in over hearsay, secondary evidence, and authentication objections. The Court of Appeal, in a divided opinion, reversed, mostly finding that the testimony was hearsay. 

Justice Corrigan, writing for a unanimous court, finds that the testimony about the invoices wasn’t offered for its truth, so there was no hearsay issue. In order to come in as nonhearsay, there must be some relevance independent of the truth of the statement. According to the Court, the witness’s testimony about the logo was not offered to say that the invoice is true, but instead as circumstantial evidence of a link between plaintiff’s workplace and the identity of the manufacturer of the pipe. It is relevant as such even if the quantities and costs of the pipe reflected in the invoice are wrong. 

In getting to that result, the Court analogizes to criminal cases where mail or other documents bearing a criminal defendant’s name has been admitted, not to show the truth of whatever the document says (e.g., that the defendant is, in fact licensed to drive or that she owes $43 to the electric company), but to show a connection between the defendant and the premises. So here, the relevance of the evidence didn’t turn on the truth of the company’s name and logo being the source of the pipe. Instead, it was one fact that, along with many others, formed an inferential link between the company and the pipe.

The Court also dispenses with the other arguments that managed mix up the Court of Appeal. Testimony about the invoice was permissible under the secondary evidence rule, notwithstanding its unavailability, because it was lost or destroying without any fault on the part of the plaintiff. Evid. Code § 1523(b). 

Nor was authenticity an impediment to admissibility. All that’s needed to show authenticity is a prima facie case that, if believed by the trier of fact, shows the document is what it purports to be. See §§ 403(a)(3), 1400. Testimony by the author of the document is not required. Generally, circumstantial evidence, including the document itself, and a lack of any basis to believe inauthenticity will be enough. Here, that standard was met by the testimony of the witness,’ given his familiarly with receiving materials at the work site and related paperwork, and in particular his knowledge of the pipe manufacturer and its logo. To the extent there were vagaries or inconsistencies in the testimony of an eighty-year-old man about the contents of a document he saw forty years ago, those go weight, not admissibility.  

Court of Appeal 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.