The Appellate Section proudly presents…

#3 HEARSAY: HERESIES & HOW-TOS

Justice Mark B. Simons - First District Court of Appeal, Division 5 Gary A. Watt - Hanson Bridgett

Don Willenburg - Gordon & Rees

Agenda

I. Civil Cases & People v. Sanchez (2016) 63 Cal.4th 665: Paradigm Shift?

A. Query/Sentiment/Arguments After Sanchez Issued B. The Sanchez Decision

C. What Is the Rule of Sanchez?

D. What Are Case-specific Facts?

E. Subsequent Civil Cases Interpreting Sanchez

F. Sanchez Issues

1. Personal Injury Context

2. Malpractice Context

3. Valuation Context

II. Hearsay, Heresy, How To A. Hearsay Is This

B. Is This Hearsay?

C. Answers to Hearsay Questions

Contra Costa County Bar Association Proudly Presents: 23rd Annual MCLE Spectacular

Hearsay:Heresies & How-Tos Friday, November 17, 2017Walnut Creek Marriott | 2355 N. Main Street

Justice Mark B. SimonsFirst District Court of Appeal, Division 5

Gary A. Watt, PartnerHanson Bridgett, LLP

Don Willenburg, PartnerGordon & Rees, LLP

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JUSTICE MARK B. SIMONS

Mark Simons has been an Associate Justice on the First District Court of Appeal since 2001. Before then he served on the trial bench for over 20 years. He has taught at the B. E. Witkin Judicial College since 1984 and was the Dean of the College in 1995 and 1996. Justice Simons served as an adjunct Professor at Hastings College of the Law from 2002 through 2004 and taught Evidence. He has published two books on California law, each of which is updated annually: California Evidence Manual (West) and California Preliminary Examinations (Lexis/Nexis). Justice Simons has twice received the Bernard Jefferson Award for Distinguished Service in Judicial Education from the California Judges Association. In 2014 he and Justice Corrigan were jointly awarded the Judicial Council’s first Distinguished Service Award for Excellence in Judicial Education.

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GARY A. WATT, PARTNER

Gary serves as chair of the firm’s Appellate Practice. He is a State Bar approved Certified Appellate Specialist handling writs and appeals in all of the California appellate courts, including the California Supreme Court and the United States Court of Appeals for the Ninth Circuit. Gary is also the director and supervising attorney for the Hastings Appellate Project, U.C. Hastings’ pro bono clinical program operated in conjunction with the Ninth Circuit, and chair of the Contra Costa County Bar Association’s Appellate Practice Section. His practice also includes dispositive motions such as SLAPP, summary judgment, and post-trial motions. Gary has published dozens of articles on appellate issues and taught numerous MCLE courses annually on a wide array of best practices. His appellate blog posts can be found at www.appellateinsight.com.

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DON WILLENBURG, PARTNER

Don Willenburg is a partner in Gordon & Rees’s Oakland and San Francisco offices, and national leader of the firm's Appellate Practice Group. He is past chair of the Appellate Practice Section of the Bar Association of San Francisco, and presently chairs the amicus briefs committee of the Association of Defense Counsel of Northern California and Nevada. Mr. Willenburg has extensive experience in appeals and writs, as well as dispositive trial court motions, in a variety of substantive areas of the law, including product liability, employment, and construction.

Mr. Willenburg has guest lectured at the University of Southern California and Pepperdine Law Schools, and has served as a moot court justice at a number of law schools in Los Angeles and San Francisco. He has volunteered as judge pro tem and as a Penal Code section 1524 special master.

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2017 CCCBA MCLE Spectacular

Hearsay: Heresies & How-Tos

Justice Mark B. Simons, First District Court of Appeal, Division 5

Gary A. Watt, Hanson Bridgett1

Don Willenburg, Gordon & Rees2

I. Civil Cases & People v. Sanchez (2016) 63 Cal.4th 665: Paradigm Shift?

“Sanchez announced a ‘paradigm shift’ regarding how out-of-court statements

used as expert testimony basis are treated under California hearsay law.” (People

v. Ochoa (2017) 7 Cal.App.5th 575, 588.)

An existential question: When it comes to civil cases, what does Sanchez stand for?

A. Query/Sentiment/Arguments After Sanchez Issued:

“It’s just a criminal case”

“It’s just a Sixth Amendment case”

“It’s not applicable to civil cases”

“The civil component is just dicta”

“If Sanchez is applied to civil cases, expert testimony will be impossible”

“WTF?!!”

B. The Sanchez Decision

In Sanchez, the defendant was charged and convicted with, among other things,

possession of a firearm by a felon, possession of drugs while armed with a loaded

firearm, active participation in the “Delhi” street gang, and commission of a

felony for the benefit of the Delhi gang. The conviction for gang enhancements

rested in part upon the testimony of the prosecution’s expert on gangs.

In providing his opinion on Defendant’s gang affiliations, the expert related to the

jury facts for which no admissible evidence had been admitted. This included the

contents of various police documents regarding defendant’s prior contacts with

police.

1 Gary Watt is a State Bar Certified Appellate Specialist, chair of Hanson Bridgett’s Appellate Group, and

chair of the CCCBA’s Appellate Practice Section.

2 Don Willenburg is chair of Gordon Rees’ Appellate Group and past chair of the Bar Association of San

Francisco’s Appellate Practice Section.

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“We hold that the case-specific statements related by the prosecution expert

concerning defendant’s gang membership constituted inadmissible hearsay under

California law. They were recited by the expert, who presented them as true

statements of fact, without the requisite independent proof. Some of those

hearsay statements were also testimonial and therefore should have been excluded

under Crawford [6th Amendment right to confrontation]. The error was not

harmless beyond a reasonable doubt. Accordingly, we reverse the jury findings

on the street gang enhancements.” (People v. Sanchez (2016) 63 Cal.4th 665,

670-671.)

C. What Is the Rule of Sanchez?

Is it:

It’s common knowledge that experts can rely on hearsay?

An expert’s general knowledge, even if technically hearsay, is not subject

to exclusion on hearsay grounds?

Or is it:

Absent admissible evidence establishing the fact(s), an expert cannot

relate to the jury case-specific facts about which the expert has no

independent knowledge.

“In sum, we adopt the following rule: When any expert relates to the jury

case-specific out-of-court statements, and treats the content of those

statements as true and accurate to support the expert’s opinion, the

statements are hearsay. It cannot logically be maintained that the

statements are not being admitted for their truth.” (Sanchez, 63

Cal.App.4th at p. 686, emphasis added.)

Rationale:

“Once we recognize that the jury must consider expert basis

testimony for its truth in order to evaluate the expert’s opinion, hearsay

and confrontation problems cannot be avoided by giving a limiting

instruction that such testimony should not be considered for its truth. If 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. Like any other hearsay evidence,

it must be properly admitted through an applicable hearsay exception.”

(Id. at p. 684, emphasis added.)

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But an expert may “testify about more generalized information

to help jurors understand the significance of those case-specific

facts.” (Id. at p. 676.)

“And an expert is allowed to give an opinion about what those

facts may mean.” (Ibid.)

These principles were embodied in the use of the hypothetical

question, where “other witnesses supplied admissible evidence of

the facts” and the expert was then asked to assume them to be true

and give an opinion.

But “if no competent evidence of a case-specific fact has

been, or will be, admitted, the expert cannot be asked to

assume it.” (Id. at p. 677.)

Why now?

A line of cases developed, generated in part by the California Supreme

Court itself, that downplayed the danger of experts relating hearsay on

the basis that: a) the case-specific facts were not actually offered for their

truth; and b) the use of jury instructions and exercise of court exclusionary

functions such as Evidence Code section 352, eliminated any danger of the

jury itself relying on inadmissible evidence (coming in through the expert

opinion).

What this led to, however, was a blurring of the distinction between the

permissible reliance by an expert on hearsay in background materials and

hearsay case-specific facts—which is acceptable under the Evidence

Code—versus relating such case-specific facts to the jury when such facts

are hearsay. As to the latter, the Sanchez decision busted the myth

because:

When an expert relies on hearsay to provide case-specific facts,

considers the statements as true, and relates them to the jury as a

reliable basis for the expert’s opinion, it cannot logically be

asserted that the hearsay content is not offered for its truth. (Id. at

p. 682, emphasis added.)

An expert’s testimony regarding the basis for the opinion must be

considered for its truth by the jury. (Id. at p. 679.)

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D. What Are Case-specific Facts?

“Case-specific facts are those relating to the particular events and

participants alleged to have been involved in the case being tried.”

(Sanchez, 63 Cal.4th at p. 676.)

Examples given in Sanchez:

(1) That 15 feet of skid marks were measured at an auto accident

scene would be case-specific information. Those facts could be

established, for example, through the testimony of a person who

measured the marks.

(2) That hemorrhaging in the eyes was noted during the

autopsy of a suspected homicide victim would be a case-

specific fact. The fact might be established, among other

ways, by the testimony of the autopsy surgeon or other

witnesses who saw the hemorrhaging, or by authenticated

photographs depicting it.

(3) That an associate of the defendant had a diamond tattooed

on his arm would be a case-specific fact that could be

established by a witness who saw the tattoo, or by an

authenticated photograph.

(4) That an adult party to a lawsuit suffered a serious head injury at

age four would be a case-specific fact. The fact could be

established, inter alia, by a witness who saw the injury sustained,

by a doctor who treated it, or by diagnostic medical records. (Id. at

p. 677.)

E. Subsequent Civil Cases Interpreting Sanchez

1. Conservatorship of K.W. (2017) 13 Cal.App.5th 1274 (Sanchez error

harmless)

The expert “testified concerning ‘information about [K.W.’s] past and his

functioning in other settings provided by ‘other people.’ This information,

obtained from historical reports and medical records, included allegations

that K.W. was evicted from a room and board facility for causing a fire by

leaving cooking items on a hot stove; spent money recklessly; engaged in

altercations with others by insulting or provoking them, resulting in his

expulsion from a psychiatric facility; and inappropriately touched female

residents at a psychiatric facility where he had been confined.”

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“We would agree that at least some portions of [the expert] Bravo’s

testimony are problematic in light of Sanchez. Specifically,

elements of his testimony were drawn from review of medical and

institutional records and discussions with others, as opposed to

personal contacts with K.W. For example, Bravo characterized

K.W. as ‘very inappropriate with his boundaries with people both in

a sexual manner’—touching and groping women—and generally

being ‘provocative,’ based on incidents described in prior

hospitalization records. Bravo told the jury that K.W. had to leave a

local psychiatric facility during the preceding year due to

altercations with others, and that K.W. had been evicted from

outside housing for causing a fire by leaving cooking items on a hot

stove. Bravo also testified that K.W. had been involved in physical

altercations involving throwing things and insulting people. He

described K.W.’s failure to observe rules and participate in his

treatment program while in a community setting, and his failure to

obtain appropriate health care and treatment. Bravo testified that

‘records show and [K.W.’s] case manager says that he has not had

impulse control around money.’” (Emphasis added.)

“All of this was case-specific hearsay, and inadmissible under

Sanchez absent independent proof, or establishment by a hearsay

exception.”

“The Conservator suggests any case-specific hearsay related by

Bravo came from medical records qualifying for admission under

the business records exception to the hearsay rule (Evid. Code, §

1271). While perhaps true, no attempt was made at trial to establish

a proper business records foundation for any of the documents

reviewed or relied upon by Bravo, and none were offered or

admitted in evidence. Sanchez does not allow an expert to ‘relate

as true case-specific facts asserted in hearsay statements, unless they

are independently proven by competent evidence or are covered by a

hearsay exception.’ (Sanchez, supra, 63 Cal.4th at p. 686, italics added.)

Admission of this evidence was therefore error.” (Underlining added.)

Harmless error though.

2. David v. Hernandez (2017) 13 Cal.App.5th 692 (Sanchez rule subject to

forfeiture)

The expert “Nordstrand’s testimony about respondent’s future surgeries

consists of multiple hearsay statements—statements made by Bennett in

his life care plan report that were based on statements made by Dr.

Norris.”

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“Appellant claims that the ‘hearsay statements attributed to Dr. Norris

cannot support the award’ because ‘a party cannot prove case-specific

facts by having an expert repeat hearsay statements.’ Appellant relies on

People v. Sanchez (2016) 63 Cal.4th 665. There, our Supreme Court held:

‘When any expert relates to the jury case-specific out-of-court statements,

and treats the content of those statements as true and accurate to support

the expert’s opinion, the statements are hearsay.’ (Id. at p. 686.)

Appellant forfeited the Sanchez hearsay argument because he never made

a hearsay objection.”

3. People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1 (Sanchez error

harmless)

Acuna involved a challenge to a permanent injunction against gang

association under the civil nuisance law.

“While this appeal was pending, the California Supreme Court [in

Sanchez] held a gang expert cannot base an opinion on the assumed truth

of case-specific facts that are inadmissible hearsay for which no

independent competent evidence is adduced. [Citations.]”

“This aspect of Sanchez concerning state evidentiary rules for expert

testimony (Evid. Code, §§ 801-802) applies in civil cases such as this

nuisance lawsuit.”

“An expert may be asked to assume hypothetically a set of case-specific

facts for which there is independent competent evidence, and then be

asked what conclusions the expert would draw from those assumed facts.

But if no competent evidence of a case-specific fact has been, or will be,

adduced, the expert cannot be asked to assume it.”

“Sanchez restored the common law rule that the expert is not permitted to

supply case-specific facts. This aspect of Sanchez concerning state

evidentiary rules for expert testimony applies in civil cases such as this

nuisance lawsuit.”

“In light of Sanchez, much of Officer Wilson’s testimony appears

problematic, because he assumed the truth of and relied on case-specific

facts for which no competent evidence was adduced, i.e., that McDaniel

gave a ‘green light’ to Rios to assault the victim for snitching, which

meant McDaniel had high status in the gang, and Rios did as directed in

order to ‘put in work’ so he could transfer to the Broderick Boys subset.

“Nevertheless, assuming the trial court erred in allowing this evidence, we

see no prejudice warranting reversal of the judgment.”

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F. Sanchez Issues

1. Personal Injury Context

PX testifies as to his opinion that plaintiff’s knee injury was caused by the auto

accident at issue. In reaching that opinion, PX relied on an examination of the

plaintiff AND a host of other medical records by a number of providers. As the

basis for that opinion Judge allows PX to testify on direct examination as to the

specifics of the exam PX conducted, but under Sanchez precludes him testifying

as to anything contained in the medical records of the treating physicians,

allowing him to testify only that he relied on the records of City of Hope, Kaiser

Permanente, Dr. Strangelove, Dr. Demento, etc., without saying anything more

specific about the records or what is in them.

Is Judge correct in her ruling?

On cross-examination, Judge allows defendant to challenge PX’s opinion using

case specific hearsay found in the medical records PX reviewed, including, over

objection, a statement attributed to plaintiff found in an unauthenticated medical

record from City of Hope that his knee injury was caused by a fall from a ladder a

year earlier. This evidence is developed by defendant’s attorney asking PX,

“when you reviewed records from the City of Hope in forming your opinion, did

you note and consider plaintiff’s statement to his physician that the knee injury

occurred when he fell off a ladder? Does this entry in the records change your

opinion?”

Is Judge correct in her ruling?

During plaintiff’s effort to rehabilitate on redirect, Judge, over objection, allows

PX to explain that he discounted plaintiff’s statement in the City of Hope records

because, in the voluminous records PX reviewed, no less than three doctors

concluded that plaintiff’s knee injury was very recent, and could not have

happened a year earlier.

Is Judge correct in her ruling?

Let’s change the hypothetical. Plaintiff does not provide all of the medical

records available to PX, but only those most favorable to his position. PX

testifies on direct as above. But when defendant attempts to cross-examine PX on

the fact that plaintiff’s attorney cherry-picked the medical records, an objection is

interposed to the question, “plaintiff’s attorney never showed you the City of

Hope record where plaintiff said that his knee was injured the year before when

he fell off a ladder, did she?” Although it is appropriate to point out to PX his

failure to have reviewed and considered all of the relevant evidence, Judge

nonetheless sustains the objection on the ground that the records had not been

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authenticated, and thus there is no evidence that has been presented that the

medical record is what it purports to be.

Is Judge correct in her ruling?

Let’s continue. DX does not do a medical examination of plaintiff, has read no

depo transcripts and has no idea how evidence was developed at trial, and was not

asked any hypothetical questions based on evidence admitted or to be admitted.

But DX testifies on direct that based on his review of voluminous medical records

from City of Hope, Kaiser Permanente, Dr. Feelgood, etc., including her review

of x-rays and MRI’s (none of which are in evidence), that plaintiff’s knee injury

preexisted the automobile accident. Plaintiff’s attorney does not cross-examine

PX, but moves to strike PX’s testimony as none of it is based on admissible

evidence. Judge grants the motion to strike.

Is Judge correct in her ruling?

If Judge is incorrect, and opinion allowable under Evid. Code § 801, how is jury

to apply CACI 219 and 221, which ask them to consider the facts the expert relied

upon in determining credibility?

2. Malpractice Context

What are the ramifications of Sanchez on Med Mal Cases, if all the records are

not in evidence?

3. Valuation Context

How does an attorney dealing with a property appraisal apply Sanchez? For

example, many times appraisers rely on the MLS to determine the location, size,

and sales price of comp sales. Must the appraiser rely on county records? If the

MLS, is the appraiser precluded from discussing the specifics of his appraisal?

Are the appraiser’s detailed discussion of sales comps in the area case specific

hearsay?

What if the appraiser performs a drive by appraisal, relying on county records

(often inaccurate, as they do not always reflect additions, even if permitted) for

square footage of the living area and lot of the subject property? Must they

personally inspect the interior of the property to determine bedrooms and

bathrooms? Must they personally tape the exterior of the home to determine

living area?

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II. Hearsay, Heresy, How To

A. Hearsay Is This

Evidence Code section 1200:

(a) “Hearsay evidence” is evidence of a statement that was made other

than by a witness while testifying at the hearing and that is offered

to prove the truth of the matter stated.

(b) Except as provided by law, hearsay evidence is inadmissible.

(c) This section shall be known and may be cited as the hearsay rule.

Sanchez:

A “statement” is “oral or written verbal expression” or the “nonverbal

conduct of a person intended by him as a substitute for oral or written

verbal expression.” (Evid. Code, § 225.) Senate committee comments to

Evidence Code section 1200 explain that a statement “offered for some

purpose other than to prove the fact stated therein is not hearsay.” (Sen.

Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (2015 ed.)

foll. § 1200, p. 3; see People v. Davis (2005) 36 Cal.4th 510, 535–536, 31

Cal.Rptr.3d 96, 115 P.3d 417.)

Thus, a hearsay statement is one in which a person makes a factual

assertion out of court and the proponent seeks to rely on the statement to

prove that assertion is true. Hearsay is generally inadmissible unless it

falls under an exception. (Evid. Code, § 1200, subd. (b).) Nothing in our

opinion today changes the basic understanding of the definition of

hearsay.

B. Is This Hearsay?

1. PI case. A neutral witness to the accident is asked on cross-examination,

“Did you tell the officer at the scene that the red car had entered the

intersection before the light changed?”

2. P sues D, a former employee, for the misappropriation of a trade secret.

D’s laptop contains a copy of the source code for P’s product. A major

question in the case is whether D has accessed this file any time after

leaving P’s employ. P’s expert has utilized a file-listing command that

displayed when the file had last been accessed. The access date is

computer-generated information. P asks the expert for the last date the

source code was accessed.

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3. In a construction defect case, the owner of the property testifies after the

landslide he went to the office of the soils engineer and told him of the

slide. The owner is then asked how the engineer reacted and testifies that

the engineer did not appear at all surprised by the information. On a

motion to strike would you find the testimony to be hearsay?

4. P.I. case. An officer testifies that she asked a witness which driver was

speeding and the witness pointed out the defendant. On a motion to strike,

would you conclude the officer’s answer related hearsay?

5. P fell while descending stairs in D’s store. One of D’s employees testifies

and is asked by D, “When you saw P fall, what, if anything, did you say?”

The employee responded, “I asked, ‘Are you ok?’” P moves to strike the

response as hearsay.

6. The employee is later asked by P, “Prior to the fall, had any other

customers complained that the stairs were worn and slippery?”

7. In a sexual harassment case, the plaintiff is asked, “What remarks did the

defendant make that you considered improper?”

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C. Answers to Hearsay Questions

1. The answer depends on the purpose of the cross-examination. The

statement was made out-of-court, and, if introduced for its truth is hearsay.

But, if admitted simply to impeach (E.C. 780(g) and (h); Simons,

California Evidence (CEM) Note 3:45) it is not hearsay, and court will

admit unless it believes jury will not follow a limiting instruction.

2. Not hearsay. Hearsay is a “statement”, which is defined as “(a) oral or

written verbal expression or (b) nonverbal conduct by a person intended

by him [or her] as a substitute for oral or written verbal expression.”.

Computer generated evidence is “uttered” by the computer, not a person,

and is not hearsay. (People v. Goldsmith (2014) 59 Cal.4th 258, 273-274;

CEM 2:2.)

3. Not hearsay. As the answer to Q 2 reflects, a “statement” may include

non-verbal conduct, but only if that conduct is “intended as a substitute”

for verbal expression. (E.C. 225; CEM 2:4). Here it does not appear the

engineer intended to reveal a lack of surprise.

4. Yes, hearsay. Here the conduct (pointing) is intended by the witness as a

substitute for verbal expression and, so, is hearsay. ( E.C. 225; CEM 2:4)

5. Not hearsay. A question or a direction (“get out of the car”) is rarely

hearsay because it contains no assertion admitted for its truth. (People v.

Jurado (2006) 38 Cal.4th 72, 117; CEM 2:4)

6. The answer depends on the purpose of the evidence. In this case, the

plaintiff must show, among other things, that there was a defect and that

defendant had notice of it. If statement is introduced for its truth, to show

a defect existed, it is hearsay. If, however, introduced to show notice, it is

not hearsay. (CEM 2:8)

7. Not hearsay. These statements are not introduced for their truth, but

simply to show they were made. They are considered “verbal acts” that

are actionable whether true or not. (CEM 2:14)