Sunday, August 5, 2012

Recent Postings

  • People v. Yuksel.  Court properly excluded expert's testimony as to hearsay that formed the basis for his opinion.  "I Swear, I've Never Done This Before."  Posted Aug. 5, 2012.
  • People v. Wright.  Review has been granted in case finding that a peremptory challenge may not be exercised to remove a female prospective juror in order to obtain a more gender-balanced jury.  "Review Granted in People v. Wright."  Posted July 22, 2012.
  • Coito v. Superior Court.  Witness statements obtained by an attorney's investigator are protected by the work product privilege, and the identity of witnesses from whom an attorney has taken statements may be entitled to protection depending on the circumstances.  "It's My Work and You Can't Have It."  Posted July 8, 2012.
  • Tarle v. Kaiser Foundation Health Plan, Inc.  Upon rehearing, Court refiles original opinion finding forfeiture of claim of error on appeal from failure to oppose objections to evidence submitted on a summary judgment motion, and orders opinion not be published.  "Court 'Unpublishes' Summary Judgment Case."  Posted July 2, 2012. 
  • People v. Mehserle.  Evidence that the defendant police officer's department changed their taser policy after defendant shot and killed the victim, allegedly thinking that he was using his taser, was properly excluded at trial.  "Better Late Than Never."  Posted June 27, 2012.
  • Oliveira v. Kiesler.  Judgment against defendants was properly reduced to zero after reduction for amount of settlement with other defendants who committed different torts but who were responsible for the same compensatory damages"The High Cost of Settlement."  Posted June 24, 2012.
  • Juror Number One v. Superior Court.  Court may compel a juror to turn over posts made to the juror's Facebook account during the trial.  "Juror Doesn't 'Like' Court's Order."  Posted June 20, 2012.
  • Tarle v. Kaiser Foundation Health Plan, Inc.  A party who fails to oppose objections made to evidence submitted on a summary judgment motion forfeits any claim on appeal that the court erred in sustaining the objections.  "I Object to Those Objections."  Posted June 17, 2012.
  • Red Light Camera Cases.  The California Supreme Court has granted review of two cases with opposing views on authentication of red light camera photographs.  "Review Granted in Red Light Cases."  Posted June 11, 2012.
  • I Swear, I've Never Done This Before

    The trial court properly sustained objections to questions designed to elicit hearsay evidence that formed the basis of the expert's testimony, said the Second District Court of Appeal in People v. Yuksel (July 11, 2012, B231571), __ Cal.App.4th __ [2012 DJDAR 9550].

    Defendant was charged with meeting a person believed to be a minor for the purpose of engaging in sexual activity.  In his defense he presented a clinical and forensic psychologist who opined that defendant was not a pedophile, that is, a person with an abnormal and persistent sexual interest in prepubescent children.  After testifying that an important consideration was that there was only one incident, the court sustained the prosecutor's objections to questions asking whether the expert was aware of any other incidents involving defendant and minors.

    The testimony was properly excluded in the exercise of the court's discretion, said the court of appeal.  The questions attempted to elicit the defendant's hearsay statements to the expert that the offense in this case was an isolated incident, and although an expert may rely on hearsay, the evidence must be reliable and of the type that experts reasonably rely upon in forming their opinions.  The court impliedly found that defendant's statements were unreliable and did not abuse its discretion in concluding that the probative value of the testimony was outweighed by its prejudicial effect. 

    Sunday, July 22, 2012

    Review Granted in People v. Wright

    The California Supreme Court has granted review in People v. Wright (S202433), where the court of appeal agreed with the trial court that defense counsel could not legally exercise a peremptory challenge against a female prospective juror because of her gender, even if the object of the challenge was to obtain a more gender-balanced jury.  See, "A Question of Balance," posted May 13, 2012.

    Sunday, July 8, 2012

    It's My Work and You Can't Have it

    Recorded witness statements obtained by an attorney's investigator are protected by the attorney work product privilege, said the California Supreme Court in Coito v. Superior Court (June 25, 2012, S181712), __ Cal.4th __ [2012 DJDAR 8713].  The Court also held that the identity of witnesses from whom counsel has obtained statements may be entitled to work product protection depending on the circumstances.

    Plaintiff's son drowned in the Tuolumne River, and she sued several defendants, including the State of California.  When codefendant City of Modesto noticed the depositions of several juveniles who witnessed the incident, counsel for the state sent investigators to interview the prospective deponents.  Counsel provided the investigators with questions he wanted asked, and the interviews were audio-recorded.

    Plaintiff served the state with interrogatories, which included Judicial Council form interrogatory No. 12.3, which asked whether the state had obtained any written or recorded statements concerning the incident, and, if so, to identify the witnesses who provided statements.  Plaintiff also requested production of the audio recordings.  The state objected and plaintiff moved to compel.  The trial court denied plaintiff's motion (except as to one recording where the state waived the work product privilege by using the recording during the deposition), but the court of appeal granted plaintiff's petition for a writ of mandate and directed the trial court to order the state to produce the recordings and provide a response to the interrogatory.

    The Supreme Court reversed and remanded the case, holding that the recorded statements were either absolutely privileged or subject to the qualified work product privilege, and that the information responsive to the interrogatory might be entitled to work product protection, depending on the circumstances.

    Witness statements obtained as a result of an interview with an attorney, or by an attorney's agent, are work product, said the court.  To the extent these interviews reveal the impressions, conclusions, opinions or legal research or theories of the attorney, they are entitled to absolute protection.  The interviews might contain explicit comments of the attorney, the questions may provide a window into the attorney's theory or evaluation of the case, and even the fact that the attorney has chosen to interview a particular witness might disclose tactical or evaluative information.  If the attorney resisting the discovery shows that the disclosure would reveal impressions, conclusions, opinions or legal research or theories, the court should conduct an in camera inspection to determine if the absolute privilege applies.

    A witness statement that is not absolutely privileged, however, is at least entitled to qualified protection, the court continued.  To prevent an attorney from free-riding on the industry and efforts of opposing counsel, the party seeking disclosure has the burden of showing that denial of disclosure would unfairly prejudice the party in preparing its claim or defense or will result in an injustice.

    As for the form interrogatory, the court held that responsive information is not automatically entitled to work product protection, and ordinarily the interrogatory should be answered.  But the privilege may nevertheless apply if the objecting party can show that an answer will reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry and efforts.  Upon such a showing, the court should review the information in camera and decide whether the absolute or qualified privilege applies.

    Monday, July 2, 2012

    Court "Unpublishes" Summary Judgment Case

    After holding that the plaintiff, who failed to oppose objections made to evidence submitted on a summary judgment motion, forfeited any claim of error in sustaining these objections on appeal, the Second District Court of Appeal has decided that the decision should not be cited as precedent.

    In Tarle v. Kaiser Foundation Health Plan, Inc. the court originally ordered that the portion of the decision requiring objections should be published, but that the portion finding that the defendant was complicit by filing numerous overbroad objections should not.  See, "I Object to Those Objections," posted June 17, 2012.  Plaintiff petitioned for rehearing and requested that the complete opinion be published.  The court denied the petition, but on its own motion granted rehearing and stated that the court will "refile the opinion in this matter, without modification and with directions that is (sic) not to be published in the official reports."  The entire opinion, therefore, is now not certified for publication.

    It may be that the court of appeal believed that it did not have the authority to order the original opinion depublished. By "rehearing" the case, and issuing a "new" opinion with the coincident order that the opinion not be published, the court achieved the desired result.

    Wednesday, June 27, 2012

    Better Late Than Never

    In a murder trial where defendant police officer maintained that he mistakenly shot the victim, thinking he was using his taser, the court did not err in excluding evidence that the police department changed its taser policy after the incident to reduce the risk of confusing the weapons, said the First District Court of Appeal in People v. Mehserle (June 8, 2012, A130654), __ Cal.App.4th __ [2012 DJDAR 7630].

    Defendant served as a police officer for the Bay Area Rapid Transit District and was attempting to arrest and handcuff the victim when he pulled his handgun, stood up and fired a bullet into the victim's back.  At trial defendant testified that he did not intend to shoot, but only to tase him.  He said he was not aware that he had mistakenly drawn his handgun until he heard the shot.

    Defendant unsuccessfully attempted to introduce evidence that after the shooting BART instituted a new taser policy, which mandated that officers carry tasers on the nondominant side of the body, and that officers draw their tasers only with their nondominant hand.  Defendant had worn his taser on his nondominant side, but set up so that it could be drawn with his dominant hand.  Defendant contended that the evidence would have shown that BART had a faulty taser policy and provided inadequate training, which was relevant to show whether the shooting was the result of criminal negligence.

    On appeal, the Attorney General argued that the change in policy was evidence of remedial measures and inadmissible under Evidence Code §1151.  Defendant argued that §1151 did not apply to criminal proceedings.  Although the court of appeal noted that at least one case had applied §1151 in a criminal case, it chose not to decide the issue, finding that the evidence was properly excluded under Evidence Code §352.

    The state of defendant's taser training was of doubtful relevance, said the court, especially considering the differences in color, weight, and location on the body of the taser and the handgun.  There also was an element of speculation as to why BART changed its policy, and introduction of the evidence might have led to a mini-trial on BART's administrative decisions as to its taser policy.  Under these circumstances, exclusion of the evidence was not an abuse of discretion.

    Sunday, June 24, 2012

    The High Cost of Settlement

    The trial court did not abuse its discretion when it reduced a $200,000 judgment to zero on account of plaintiff's settlement with other defendants who were liable for the same injury, but who committed different torts, said the Fourth District Court of Appeal in Oliveira v. Kiesler (June 15, 2012, G045721), __ Cal.App.4th __ [2012 DJDAR 7941].

    Following the death of her husband, plaintiff sued her sons-in-law and her attorneys for establishing a trust which severed the joint tenancies in plaintiff's and decedent's real properties, transferred decedent's interests to the trust, and left all of the trust property to the sons-in-law.  Plaintiff, who otherwise would have acquired title to all of the properties on her husband's death, brought suit against her sons-in-law to invalidate the trust and against her attorneys for failure to disclose that the execution of the trust and the deeds would be to her disadvantage.

    Plaintiff settled with her sons-in-law, agreeing to dismiss her complaint in return for their transferring their interests in one of the properties to her, selling a second property and giving one-half of the proceeds to her, a motor home, a boat, a motorcycle, six other vehicles, and certain antiques and furniture.  The case proceeded to trial against the defendant attorneys, and the jury awarded plaintiff $200,000.

    Defendant attorneys objected to plaintiff's proposed $200,000 judgment, contending that an offset was required by Code of Civil Procedure §877.  They argued that the amount of the settlement with the sons-in-law exceeded $200,000 and that the judgment should be reduced to zero.  Plaintiff argued that the defendants were not "claimed to be liable for the same tort," and that §877 was, therefore, inapplicable.  The trial court reduced the judgment to zero.

    The reduction was proper, said the court of appeal.  Although the defendants were not charged with the same torts, §877 has been construed to apply to all tortfeasors joined in a single action whose acts concurred to produce the injuries to plaintiff.  When multiple defendants are responsible for the same compensatory damages, said the court, a setoff for a settlement is mandatory.  It was the plaintiff's burden on appeal to present an adequate record for review, and because the record failed to establish the amount of the settlement, the trial court's conclusion that it exceeded the verdict was affirmed. 

    Wednesday, June 20, 2012

    Juror Doesn't "Like" Court's Order

    The trial court has the authority to order a juror to turn over to the court Facebook postings about the trial, said the Third District Court of Appeal in Juror Number One v. Superior Court (May 31, 2012, C067309), __ Cal.App.4th __ [2012 DJDAR 7216].

    After defendants were convicted of various offenses arising out of the beating of a young man on Halloween night, the court learned that one of the jurors had posted items on his Facebook account while the trial was in progress.  Upon inquiry, Juror Number One admitted that he had posted items about the trial, but said the posts contained nothing about the case or the evidence.  The court found that there was misconduct by Juror Number One, but was unsure as to the degree.

    Following the hearing, counsel for defendant issued a subpoena for the posts to Facebook, which moved to quash the subpoena on the ground that disclosure would violate the Stored Communications Act.  Facebook asserted that the information could be obtained from Juror Number One.  When defense counsel subpoenaed Juror Number One, he moved to quash.  The court granted Juror Number One's motion to quash based on overbreadth, but ordered the juror to turn over all the posts for an in camera review.  Juror Number One filed a petition to bar the enforcement of this order.

    The order was not an abuse of the court's authority, said the appellate court.  The SCA protects against disclosure by an internet service provider or electronic communications facility, not the user who provides the information.  Juror Number One did not show he had any expectation of privacy in the posts and, in any event, whatever privacy interest he had was outweighed by the defendant's right to a fair trial, especially considering that the court found that misconduct had occurred.  The court could properly inquire further to determine if the misconduct was prejudicial.

    Sunday, June 17, 2012

    I Object to Those Objections

    [Note: Subsequent to this post, the Court of Appeal refiled its decision after rehearing and ordered it not be published.  See, "Court  'Unpublishes' Summary Judgment Case," posted July 2, 2012.]

    A party who does not oppose objections to evidence submitted on a motion for summary judgment may not claim on appeal that the court's ruling sustaining the objections was error, said the Second District Court of Appeal in Tarle v. Kaiser Foundation Health Plan, Inc. (May 22, 2012, B224739), __ Cal.App.4th __ [2012 DJDAR 6690].

    In an action for employment discrimination, defendants objected to evidence submitted by plaintiff in opposition to defendants' motion for summary judgment.  The court sustained all but 13 of the objections and granted the motion.  On appeal, plaintiff challenged the court's ruling on the objections, arguing that defendants objected to evidence that they themselves relied upon, that the objections failed to specify adequate reasons and that many of the objections were frivolous.

    The court of appeal held that plaintiff was barred from asserting her claim of error because she failed to provide any oral or written opposition to the objections in the trial court.  While it may be unjust for an appellate court to uphold a summary judgment based on erroneous evidentiary rulings, "[w]e believe, however, that it is equally unjust for a party to lead a trial court to make an erroneous ruling...by failing to suggest to the court a basis on which the evidence is admissible, and then raise the argument for the first time on appeal."

    Opposition may be made in several ways, said the court.  If there is adequate time, a written opposition may be filed.  If not, a party may request a continuance, which "we are confident that trial courts will grant...where properly sought."  Opposition may also be made orally at the hearing or, if a party anticipates an objection, at the time the evidence is submitted.  Where a party raises numerous inconsequential objections, it is incumbent on the party presenting the evidence to challenge the objections as burdensome and to request a ruling "requiring the opposing party to exercise restraint."

    Because "restraint" was a concept foreign to both sides in this case, the court reversed the judgment despite finding that the claim of error was waived by plaintiff.  In the unpublished portion of its decision the court found that plaintiff's failure to oppose the objections was due, in part, to defendants having made numerous overbroad objections which they should not have made.  These numerous objections were due, in part, to plaintiff's offering of over 750 pages of evidence, much of which was inadmissible.  Plaintiff's oversubmission of evidence was caused, in part, by defendants' separate statement of undisputed material facts, which included many items that were neither material nor facts.  Since the general rule is that a party should be given the opportunity to cure any failure to comply with the law or rules on summary judgment, the matter was remanded to allow the defendants to file a "new and properly prepared" motion and for any further proceedings.

    Monday, June 11, 2012

    Review Granted in Red Light Cases

    The California Supreme Court has granted review of two Second District Court of Appeal cases which came to opposite conclusions as to the foundation necessary to admit photographs taken by red light cameras.  People v. Goldsmith (S201443) had concluded that the trial court did not err in admitting the photographs despite the absence of testimony showing that the camera was operating properly.  The appellate court found that the images were presumed to be accurate, the defendant had not cast doubt on their reliability, and the photographs and the information printed on them were not hearsay.  See, "Humans and Machines Are Now Tied," posted Mar. 28, 2012.

    The Court also granted review of People v. Borzakian (S201474), where a different division of the appellate court reversed the defendant's conviction on the ground that the photographs were not properly authenticated.  See, "Humans 1, Machines 0," posted Mar. 25, 2012.  Further action in Borzakian was deferred pending the outcome in Goldsmith.

    In granting review of Goldsmith, the Court limited the issues to 1) What testimony, if any, regarding the accuracy and reliability of an automated camera system is required? and 2) Is the evidence hearsay and, if so, do any exceptions to the hearsay rule apply?

    For a discussion of the holdings in Goldsmith and Borzakian by guest poster Christine Peek, see "Are Humans Really Necessary?" posted Apr. 2, 2012.