Evidence

Collaborative law is a non-judicial alternative dispute resolution process commonly used for marriage dissolutions.  In this case, a couple undergoing a divorce tried to settle their differences by that means.  At the start they executed a "contract" which stated at the top "that this document does not give either of us enforceable legal rights that we did not already have." … Read More

That a corporation's person most qualified attests to the documents does not mean that they are therefore automatically admissible under the business records exception to the hearsay rule.  To invoke that exception, a witness must testify from personal knowledge as to the mode of preparation of the documents, among other things.  That the person is most qualified to respond to… Read More

On appeal, we will not presume from a silent record that a trial court meant to sustain evidentiary objections when it did not expressly so rule.  Nor will we undertake the duty to rule on evidentiary objections in the first instance on appeal.  Objections not expressly ruled upon are deemed overruled where they go to material issues of fact.  While… Read More

While the abuse of discretion standard applies on review of most evidentiary rulings, when the ruling excludes evidence essential to a claim and thus has claim-dispositive effect, the rulling is review de novo. Read More

In this sex harassment case, the Court of Appeal reverses a denial of plaintiff's new trial motion, finding that the trial court erred in failing to exclude the contents of complaints co-workers lodged against plaintiff.  The fact that co-workers had complained about plaintiff was relevant since the complaints provided a possible motive for plaintiff to fabricate her own sex harassment… Read More

Under Fed. R. Evid. 803(8), a public agency's investigatory report, such as a police department's accident report, is admissible despite the Hearsay Rule to the extent that it sets forth the investigating officer's observations and knowledge, but insofar as it records statements by accident witnesses, there is an additional hearsay layer requiring an additional exception to be admissible.  Rule 803(8)… Read More

Evid. Code 1106 prohibits admission of specific instances of plaintiff's sexual conduct to prove the plaintiff's consent or lack of injury from alleged sexual harassment, assault or battery.  A "plaintiff's sexual conduct" includes involuntary as well as voluntary sexual conduct (such as a subsequent sexual assault by a different perpetrator). While evidence of sexual conduct otherwise excludable under 1106(a) may,… Read More

Oregon's wiretapping statute violates the First Amendment and is unenforceable.  It is a content-based regulation of speech since it excepts from its scope police recordings of conversations in which the policeman is a party and is performing official duties.  The law doesn't meet strict scrutiny because it is too broad, banning audio or visual recording on any conversation without consent--thus,… Read More

The trial court properly granted summary judgment against the plaintiff insureds who sought coverage under their named peril property insurance policy for loss of their frozen embryos due to a failure of the refrigeration unit of the embryo storage company.  The insureds could not prove that the embryos had suffered physical damage.  The storage company refused to say, and the… Read More

An electrician working on a lengthy project at a farm caught a disease caused by a fungus that spreads from bird feces particularly if the feces are mixed with soil over an extended period.  Following Sarti v. Salt Creek, Ltd. (2008) 167 Cal.App.4th 1187 and distinguishing Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, this decision holds that… Read More

The trial court did not abuse its discretion in excluding plaintiff's expert witness' opinion regarding the accused diabetes drug's causing an increased risk of heart failure in diabetics.  The expert relied on only one test, the authors of which noted that its results as to heart failure were anomalous and required comparison with other tests.  The expert also did not… Read More

Husband's divorce attorney violated the federal Wiretapping Statute (18 USC 2511) when he filed transcripts of conversations between wife and her child which husband had surreptitiously taped on a recorder hidden in the child's backpack.  Husband couldn't vicariously consent on the child's behalf to recording the conversations since the child was not in husband's custody at the time of the… Read More

This decision affirms an order disqualifying plaintiff's attorney in a case arising from a dispute among the three principals of a closely held corporation.  Plaintiff sued the other two principals as one of those defendants' wives.  Using the corporation's computers, plaintiff accessed emails the wife sent her husband over the corporation's email server.  The decision holds that the trial court… Read More

Defendant's posts on social media about plaintiff who was a lobbyist assisting a church in seeking city council approval of a development project were not absolutely privileged under CC 47(b).  The social media posts were not made in preparation for the official proceedings before the city council.  The unprivileged social media posts were defamatory, accusing the plaintiff of engaging in… Read More

Though designated a person most qualified in response to a deposition subpoena on a corporation, the corporate representative is an ordinary lay witness whose testimony is admissible at trial only if based on her personal knowledge.  Here, a PMQ offered a declaration in support of defendant's summary judgment motion full of statements about defendant's practices decades before the witness was… Read More

The trial court is not required to consider grounds for summary judgment that the movant's papers do not identify, but the court may, in its discretion, consider an additional ground if an evidentiary basis for the additional ground appears in the summary judgment record, and (2) the opponent has notice of and an opportunity to respond to the additional ground. … Read More

The trial court did not abuse its discretion in entering a preliminary injunction under the CLRA against defendants continuing to sell puppies which they falsely claimed were healthy but in fact were not and died in many cases within days after sale.  Defendants' main argument on appeal was that the evidence didn't show that they sold the puppies that plaintiffs'… Read More

Plaintiff raised a triable issue of fact precluding summary judgment on her disability discrimination claim.  Defendant fired her because she failed a physical exam which allowed an inference that defendant regarded plaintiff as disabled due to balance and strength deficits in her right leg as shown on the physical exam.  Plaintiff also raised a triable issue as to whether she… Read More

Following Light v. California Department of Parks & Recreation (2017) 14 Cal.App.5th 75 and looking holistically at the evidence, plaintiff raised a triable issue of fact precluding summary judgment on her sex discrimination and retaliation claims.  The defendant was not entitled to a presumption of nondiscrimination based on the same actor (hiring and firing) her since the hiring was tied… Read More

Recognizing there is a split of authority on the question, this decision holds that rulings on evidentiary issues in connection with a summary judgment motion should be reviewed for abuse of discretion, not de novo.  However, on the merits, an order granting a new trial (after te grant of a summary judgment motion) is reviewed de novo. Read More