Winter 2017, Issue 1

Litigator’s Log – Quarterly Case Exam

This log is by litigators and for litigators. There are many case analysis articles, including the best, “Hot Off the Press,” previously featured in the Specialist for many years by our own esteemed Dawn Gray. Dawn is now the editor of the Family Law News, the official publication of the State Bar of California Family Law Section, and is taking her case analysis to that publication. Dawn, we will miss your quarterly analysis in the Specialist but look forward to visiting you at your new home.

Because we did not want to merely provide another case analysis article when so many good ones exist, the ACFLS Specialist has decided to offer case analysis specifically helpful to litigators. Each quarter this log will discuss good litigation technique, drawing from recent case law.

Every case we undertake will contain an analysis broken into four parts: An opening sentence, Factual Summary, Commentary addressing the litigation issue, and Litigator Tips. Whether a reader has time to examine the entire case analysis, merely reads the tips, or later, searches by hashtag for a particular litigation category online at the ACFLS website, the intent of this quarterly case exam is to make us all better litigators.

All cases will be marked with one or more LitLog hashtags for later meta-data searches, and will include: #LLBoP, #LLConLaw, #LLCredibility, #LLElementsLaw, #LLEthicsMalp, #LLEvidCode, #LLEvDocPhotoDemo, #LLMitigation, #LLPrivilege, #LLProcedure, #LLWtnAdmissions, #LLWtnExpert, #LLWtnLay, and/or #LLWtnProfessional.

For our first LitLog we have selected several of the best evidence-oriented cases of 2016, and will cover: expert witnesses and the double hearsay problem; use of declarations at trial; and proving change in circumstances. After this, we will continue to select recent cases, delaying in our reporting only long enough for notice of further appeal, late publication, or de-publication.

People v. Sanchez, 204 Cal. Rptr. 3d 102 (2016).
#LLWtnExpert, #LLConlaw

Absent a stipulation, litigators must prove all underlying facts and testimony in an expert report, even if the expert had the right to rely on those facts as the basis for the expert opinion.

FACTUAL SUMMARY: The prosecutor in this precedent-setting California Supreme Court criminal case sought gang sentencing enhancements to defendant’s felony charges, including possession of a firearm and possession of drugs with a loaded firearm. The requested gang sentencing enhancements required proof of defendant’s gang affiliation. To establish that proof, the prosecutor called to the stand a “gang expert,” who provided testimony, including “facts” specific to his determination of gang affiliation, which were derived largely from previous police reports containing testimonial hearsay statements that were not independently admitted into evidence. The California Supreme Court, reversing both the trial court and the appellate court, overturned defendant’s enhanced sentence, holding that admitting multiple hearsay statements contained in the police reports was not harmless error beyond a reasonable doubt. Although the court reaffirmed that an expert may rely on inadmissible hearsay in formulating an opinion, and may testify thereto, the expert may not repeat said hearsay as fact, absent a hearsay exception that would make admissible the underlying hearsay statement.

Going even further in this important case, the Supreme Court disapproved its own prior decisions “that an expert’s basis testimony is not offered for its truth,” Id. at 118, n.13, reasoning that “[w]hen 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 [and] it cannot logically be maintained that the statements are not being admitted for their truth.”

Finally, the court held that the admission of hearsay to, in essence, introduce facts crucial to establishing gang affiliation that were not properly established elsewhere in the proceeding, ran afoul of the Confrontation Clause. This provided an additional mandate to overturn the trial and appellate courts’ decisions.

COMMENTARY: In family courts throughout the state, expert reports are often introduced into evidence without objection or by stipulated hearsay waivers. Technically, there are two paths to admission of the report. First, hearsay waivers from the parties are risky but ensure admissibility of the often-costly report. People v. Sanchez reminds us however, that even when we stipulate to allow into evidence some or all of the report, as the first step to challenging the expert’s conclusions, we must be prepared to offer or overcome objections to the multiple hearsay within the report. Secondly, when no previous hearsay waivers have been made by the parties, the first step to admitting an expert’s report into evidence is to properly authenticate the report via the preparing-expert’s testimony, whereby credentials are established, methodology is validated, and the basis of the expert’s factual knowledge used to formulate an opinion is explained.

Whether by waiver or by authentication, the report itself may be admitted into evidence, but much of its basis may still remain objectionable, if the report contains more than just the expert’s opinion, such as statements by the expert or others which attempt to introduce facts not properly admitted during, or prior to, the present proceeding. If the facts embedded in the report are crucial to the case, they must be properly introduced into evidence by other means or by way of exception to each layer of multiple hearsay, ideally before introduction of the expert report, to minimize grounds for sustaining objections.

LITIGATOR TIPS: Litigators seeking to have the court accept the conclusions of an expert who has relied on the out-of-court statements of witnesses must not assume the other party will fail to object to the underlying facts used in forming the expert’s opinions. Do not be unprepared. Just because the report comes in, or just because the evaluator testifies that a certain witness told the evaluator a key piece of information, does not mean that the underlying evidence should also come in. If the basis for the opinions in the report are missing at trial, upon objection, the entire report may be found less credible, and a favorable report may, worst case scenario, become useless to prove the expert’s recommendations or findings.

Litigators challenging the report should always look to whether the expert’s reliance on hearsay specific to the case should be challenged due to failure of the supporting party to bring in the underlying witnesses or facts.

A stipulation to accept the expert’s reliance on a subset of otherwise hearsay statements is a good move when both attorneys want to limit the controversy to a few material witnesses. In family law, if attempts to mutually limit less-necessary testimony are rebuffed, both attorneys will be forced to consider the inclusion of the full list of collateral witnesses.

In re Marriage of Shimkus, 198 Cal. Rptr. 3d 799 (2016). #LLEvDocPhotoDemo, #LLProcedure, #LLWtnAdmissions.

Litigators must be prepared to either request and win the admission of hearsay declarations or put on all the underlying testimony and related attachments afresh.

FACTUAL SUMMARY: At the Family Code section 217 evidentiary hearing, held to evaluate respondent’s post-judgment requests for support modification and attorney’s fees, petitioner’s attorney mistakenly assumed there would be automatic admissibility of Request for Order declarations, limited only by prior Motions to Strike and the court’s orders thereon. However, after the court made it clear that it would receive live testimony, per Family Code section 217, because attorney did not move to admit the pertinent Request for Order declarations into evidence, the court did not fully consider the evidence the attorney believed was offered. Affirmed on appeal because the record did not indicate that the overlooked Request for Order declarations had ever been properly admitted into evidence.

COMMENTARY: This case is a cautionary tale for all family law lawyers. Although the Evidence Code makes clear that declarations are hearsay, because the family law judge is both the trier and finder of fact, we take for granted that all pleadings and exhibits will be considered, absent objections from opposing counsel (which may paradoxically draw more of the court’s attention to the objectionable filing). However, this case reminds us that the family court is a court of law requiring the same adherence to evidentiary procedure as its civil and criminal counterparts. Although CCP section 2009 permits admissibility of non-trial affidavits, this case demonstrates that simply attaching a declaration to a Request for Order does not properly place said declaration for consideration before the court, especially in a hybrid proceeding, such as a Family Code section 217 evidentiary hearing, where the court may consider both filed declarations and witness testimony. In this case, despite not putting on all facts in her case, the attorney did not move for the admission into evidence of the underlying declarations, and their exhibits. Therefore, they were not available as evidence when the court made the final ruling, and several assumed facts were not considered.


DECLARATIONS: When a lawyer wants a declaration admitted at an evidentiary hearing (an “affidavit” under CCP section 2009) a lawyer has only two choices:

a) Absent a stipulation, if the lawyer wants declarations to come in as direct testimony, the lawyer must expressly move that the declarations and all, or a subset, of the exhibits, be admitted into evidence.

b) If the court sustains a hearsay objection and the motion is denied, the lawyer must instead be prepared to elicit declarant testimony, authenticate, and have the exhibits marked and admitted into the record.

Absent admission into evidence of the declaration, by stipulation or by offering a hearsay exception sufficient to overcome opposing counsel’s objection, the court would likely be in error if its decision included consideration of a declaration not properly admitted into evidence.

EXHIBITS: Exhibits imbedded in declarations that are used for direct or cross examination at hearing, after being admitted by the above steps, should be identified consistently with the exhibit numbers of the filed declarations, “by reference.” For example, if examining the petitioner on a photo of a broken door frame in a domestic violence case, originally attached as Petitioner’s Exhibit C, reference must be made to Exhibit C. If the court, for clarity sake, wants to change the numbering (e.g., three “Exhibit Cs” exist in the underlying declarations), a discussion may be had on the record, and a new numbering system may be assigned, but still starting with the reference to where the exhibit was found in the admitted declaration.

Anne H. v. Michael B., 204 Cal. Rptr. 3d 495 (2016).
#LLBoP, #LLCredibility, #LLEvDocPhotoDemo, #LLProcedure, #LLWtnLay

Litigators beware—no “automatic” change of circumstances, and regardless of previous orders, when a change of circumstances must be proven, a complete record must be established and all elements must be demonstrated by the party with the burden of proof.

FACTUAL SUMMARY: Less than a year after a final move-away order, in which father received primary custody of the child during the school year based on stability, a military mom filed for modification. She relied on what she presumed was a court-ordered automatic change of circumstances, but provided suspicious evidence. Her request was denied without factual findings. She was ordered to pay sanctions and later lost on appeal.

At the original move-away trial, a previous judicial officer found that a significant, but not exclusive, factor for child to be in father’s primary care was the fact that mother’s family, whom child enjoyed, still lived near father in the Bay Area and could house mother when she returned for a visit from Virginia. The father had no such inexpensive method of visiting the child wherever the mother would be stationed in the future. The initial judge held, among other rulings, that moves by the parties or mother’s family members would be a change of circumstances, “requiring a new analysis of the ongoing custodial timeshare….” This ruling appears to have given mom false hope that her burden would be easy to accomplish.

When mother filed for a modification, she had already moved from her initial post to a new city on the East Coast for a ten-month course, and anticipated yet another location change after her training was complete. Ignoring the effect of these transitions on the child, and to prove a change of circumstances, mother attached a grant deed to her declaration showing that a residence had been purchased in her parents’ names near her post-training location. At the hearing she also made an offer of proof, never entered into evidence, of a utility bill at the East Coast address in her parents’ names. Father offered competing evidence, such as the fact that the address on the grant deed was listed as mother’s own new address in an application, the fact she never gave the court a different new address for herself, and the fact that the grandparents visited with the child at their alleged former residence in the Bay Area after mother’s request for orders was filed. It appears that no acceptable testimony was given by mother on why the change away from father was in the child’s best interests.

COMMENTARY: Family Code section 3087, as interpreted by the California Supreme Court in In re Marriage of Brown and Yana, 38 Cal. Rptr. 3d 610, 616 (2006), reiterates the “changed circumstance rule,” wherein “custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.”

Mother asserted on appeal that the trial court abused its discretion in not finding that her parents’ move was a court-mandated change of circumstances. The appellate court dispensed with the automatic change of circumstances argument in a carefully detailed examination of the law. Briefly, in an extension of appellate law to the trial court level, any previous court’s non-essential, also called unnecessary, ruling on what would constitute a future change of circumstances cannot bind a future judge’s decision. Anne H., 204 Cal. Rptr. 3d at 504.

For analysis by litigators, is whether mother offered enough evidence to prove that a significant change of circumstances had occurred. In essence, she had to prove that her parents actually moved and did not merely buy a home in Virginia. The appellate court found her proof insufficient and called into question her credibility. In addition to the impeachment offered by father, “oddly,” there was no declaration or testimony from her parents to prove that they had actually moved. Id. at 506.
Finally, “nothing in the change of circumstances claimed by Mother caused school year custody with her, rather than Father, to be a clearly preferable situation in furthering [child’s] best interests.” Id. Merely showing a change in circumstances does not prove the second element, that a different custody arrangement would be in the child’s best interests.


NO AUTOMATIC CHANGES IN CIRCUMSTANCES: Litigators must make sure that any mixed signals from past rulings are not exclusively relied on when bringing in a post-judgment modification. The specific elements changes of circumstances must be shown—no automatic change of custody! See also Heidi S. v. David H., 205 Cal. Rptr. 3d 335 (2016), for a discussion of automatic changes due to dirty drug tests. Even in that case, the principle stands that a person resisting a proposed change is always allowed to have his or her day in court if he or she files with sufficient evidence to disprove an inciting event. For another recent case on proving the non-essential element while skipping the material one, see In re Marriage of Evilsizor and Sweeney, 189 Cal. Rptr. 3d 1 (2015), where the husband asserted that it was his legal right to obtain his wife’s text messages, but derailed when he offered no argument against why his inappropriate use of those messages made him susceptible to a domestic violence restraining order.

LAY WITNESS TESTIMONY: When a witness is crucial, even if they are out of town, fly them in! Or get a stipulation that they may testify by phone.

CREDIBILITY: Partial proof when proof is easily obtainable often establishes for the trier of fact that the party offering partial proof lacks credibility. Two other recent cases demonstrate how the poor credibility of the presenting party diminished the effect of at least part of their proof: A.G. v. C.S., 201 Cal. Rptr. 3d 552 (2016), and Heidi S. v. David H., 205 Cal. Rptr. 3d 335.

In Closing

Almost all of us in ACFLS are litigators, and each of us has a set of professional techniques learned from practical experience and research. The Litigator’s Log is meant to stir discussion. If a case or topic in the LitLog makes you think of a particularly successful litigation tip, please email one of the authors. We may publish your comments here.