Summer 2017, Issue 3

Litigator’s Log – Quarterly Case Exam


This log is by litigators and for litigators. Whether a reader has time to examine the entire case analysis, merely reads the tips, or searches by hashtag for a specific litigation category, the intent of this case exam is to make us all think about being better litigators. Contributions are invited and welcome.
All cases are marked with one or more LitLog hashtags, and will include: #LLBoP, #LLConLaw, #LLCredibility, #LLElementsLaw, #LLEthicsMalp, #LLEvidCode, #LLEvDocPhotoDemo, #LLMitigation, #LLPrivilege, #LLProcedure, #LLSettle, #LLWtnAdmissions, #LLWtnExpert, #LLWtnLay, and/or #LLWtnProfessional.
In this LitLog we feature cases on three types of “trustworthiness.” We offer a simple case on proper authentication of business records, a domestic violence case showing that make-up sex and mere denials are poor defenses, and two recent cases explaining declarations against interest.

Trustworthiness—Authentication of Business Records

✦𝕃𝕃✦ Midland Funding LLC v. Romero, 210 Cal. Rptr. 3d 659 (2016).

#LLEvidCode, #LLEvDocPhotoDemo

Admissibility of evidence relies on its trustworthiness, as demonstrated by other evidence sufficient to sustain a finding of its authenticity. The only short cuts to authentication, per Evidence Code section 1400, are “stipulations, admissions in the answer, admissions of genuineness per requests for admissions, judicial notice, or self-authentication.” Midland Funding LLC v. Romero, 210 Cal. Rptr. 3d 659, 664 (2016). Thus, a Business Record is inadmissible to prove the truth of its content unless it satisfies the following Evidence Code section 1271 requirements: “(a)The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”


In a collections case, debt purchaser Midland Funding, LLC (“Midland”) introduced at trial business records, purportedly authenticated by declaration in lieu of testimony by a Midland employee, over the debtor’s hearsay objection.
Although the trial court allowed the records in, the appellate court reversed, noting, in pertinent part, that although Midland’s employee-declarant “had personal knowledge that the documents were part of Plaintiff’s business records, [the employee-declarant] did not satisfactorily establish those documents were a part of the prior creditor’s business records under Evidence Code section 1271 … [thus] there was no evidence regarding the mode of preparation or other information indicating trustworthiness.” Id. at 666 (emphasis added).


As this case reminds us, business records come in under Evidence Code section 1271– Admissible writings, only when all four elements of the statute are met.
Here, Midland was unable to sufficiently authenticate the underlying debt, absent evidence of authenticity from the original creditor, or by any of the Evidence Code section 1400 “short cuts.”

The appellate court compared the facts from two previous cases, stating that the trustworthiness of the documents had to be demonstrated. However, by failing to provide sufficient declarant testimony validating the authenticity of records from the previous creditor, or at least producing a declaration from the previous creditor, Midland could not validate the existence of the claimed underlying debt.


Caution: If there is any disagreement as to record authenticity in proving family law issues such as payment gaps, eligibility for payment reimbursements, date of separation balances, etc., especially when there are missing statements, do not become complacent. Because mortgages, home equity loans, car loans, and even credit card debt are frequently sold and re-sold, make sure the person verifying the records at trial is qualified to do so or risk having all elements of Evidence Code section 1271 fail. Alternatively, ensure that opposing counsel will stipulate in advance to authenticity of the business records despite their less-than-perfect chain of authentication.

Trustworthiness—Evolving DV Defenses
✦𝕃𝕃✦ In re Marriage of Fregoso and Hernandez, 209 Cal. Rptr. 3d 884 (2016).

#LLCredibility, #LLElementsLaw
In this domestic violence case the defendant’s testimony was considered trustworthy but he still earned a conviction.

Affirming the trial court’s decision to grant Wife a DVRO against Husband, the appellate court found that Wife’s testimony alone constituted substantial evidence sufficient to support the trial court’s decision to grant Wife a one-year restraining order. Husband argued that he provided credible denials and testimony that he was the abused, not the abuser, and that it was indisputable that the couple had been intimate between the date of TRO issuance and noticed hearing, which Husband argued “obviously showed that Hernandez did not fear him or need protection from him.” Husband further asserted that the timing of Wife’s request “smacked of game-playing … to gain a tactical advantage against Husband in future child custody proceedings.” Id. at 887.

However, Husband did not seek a restraining order against Wife and although the court agreed that “the inferences Husband draws from facts on the trial court record are not unreasonable,” under the substantial evidence test, “the issue is not whether there is evidence in the record to support a different finding, but whether there is some evidence that, if believed, would support the findings of the trier of fact.” Id. Thus, the appellate court determined that Wife’s allegations of domestic violence put forth in her testimony only, refuted by Husband’s testimony only, “is ample substantial evidence to support the court’s implied finding there was ‘reasonable proof of a past act or acts of abuse’ warranting a domestic violence restraining order under Family Code section 6300.” The holding was further bolstered by Wife’s testimony that “the parties’ post-TRO sex was part of their six-year repeated cycle of violence, gifts, forgiveness, sex, and then repeated acts of violence.”

For domestic violence victim advocates, this case shows progress in the court’s recognition that post-abuse reconciliation may be merely a respite from, yet still a component of, a continuing cycle of otherwise violent abuse. More broadly applied, this case warns against a defense that relies entirely on defending party’s testimony, even if only to refute complaining party testimony offered as evidence by the other side, notwithstanding that the burden of proof remains with the party alleging abuse. The appellate court commented that although Husband’s “factual assertions are supported by the record, and the inferences he draws from those facts are not unreasonable,” it was not abuse of discretion for “the trial court to put more weight in other, contrary evidence, and draw other reasonable inferences, contrary to the ones Husband advocate(d).” Id. at 887. Thus, in adopting Wife’s version of events, Husband’s conflicting and credible testimony was still insufficient to warrant reversal because, “[t]he testimony of one witness, even that of a party, may constitute substantial evidence.” Id. (citing In re Marriage of Mix, 122 Cal. Rptr. 79 (1975) (emphasis added)).

This is a short case that gives the bench the ability to find domestic violence even when make-up sex has occurred. For victim advocates, this is an important precedent. On the other hand, for advocates representing the accused, this case just made the “returned so unafraid” defense less useful.
This case also reminds us that the best defense in a mutual hitting or harassment case is a good offense. When an accused admits that mutual physical hitting or harassment has occurred, even in self-defense, the bench will predictably find evidence of domestic violence. If only one request for relief is before the bench, that request will often be granted. Many lawyers who frequently practice in domestic violence courts will say that an accused’s mere denial of wrongdoing, especially with no non-party evidence, is never a sufficient defense. Cautious lawyers should consider immediate filing of a counter request for a DVRO; obtaining a continuance so that both cases are heard together; then assertively attempting to mitigate, pre-hearing, by mutual stipulations. All three steps may be necessary in the lawyer’s aggressive attempt to adequately protect his or her aggrieved defendant from the extremely high likelihood of receiving a reputation-damaging CLETS restraining order.

Trustworthiness—Declarations Against Interest

Two recent cases—one criminal, one civil—address trustworthiness as it relates to the hearsay exception, Evidence Code section 1230 — Declarations against interest. Family lawyers may fear to tread in this arena, but if they understand how and when to use the exception, they may find it useful, for example, using the statements of a now senile uncle who previously admitted he encumbered his interest in a partial community asset.

This hearsay exception must NOT be confused with the elements of Evidence Code section 1235 — Inconsistent statements or the various forms of admissions, i.e., section 1220 — Admission of party, section 1221 — Adoptive admission, or section 1222 — Authorized admission. “A declaration against interest is made by a nonparty declarant who is unavailable to testify; must have been against the declarant’s interest when made; and must be based on the declarant’s personal knowledge.”1

✦𝕃𝕃✦ People v. Grimes, 207 Cal. Rptr. 3d 1 (2016).

#LLEvidCode, #LLWtnAdmissions, #LLWtnLay
The California Supreme Court discusses the relative trustworthiness of “exculpatory” vs. “inculpatory” statements by a dead murderer whose confession was used to convict a co-conspirator.

The California Supreme Court partially reversed and remanded the death sentence portion of the murder conviction of a thirty-three-year-old borderline mentally retarded defendant, Grimes, described by psychologists and his family as “a follower,” who had been found to be a co-conspirator in a crime resulting in murder (along with lesser charges), and was thus eligible for the death penalty. Grimes always maintained that he was part of a three-man conspiracy to steal from the ninety-eight-year-old victim, and was in her home during the murder, but had no intent to murder, and should not have received the death penalty.

Morris, the twenty-year-old actual murderer, bragged to friends and a jailhouse informant that he alone had strangled and stabbed the woman to death in her living room and that Grimes was surprised that the victim was dead. Morris committed suicide in his cell a day after his capture and confessions. At Grimes’ trial, because Morris was unavailable, the trial court allowed limited testimony from those who had heard Morris’ admissions under a declaration against interest theory. However, the trial court repeatedly disallowed all portions of the confession that would have helped Grimes stay off death row.

The opinion carefully analyzes the difference between the more untrustworthy “self-exculpatory” types of declarations against interest, for example, “I acted wrongly but he was worse than me,” vs. the relatively more trustworthy “inculpatory” type of statement, “I acted wrongly and no one else helped me.”

“[T]he statement must be examined in context, to see whether as a matter of common sense the portion at issue was against interest and would not have been made by a reasonable person unless he believed it to be true.” Grimes, 207 Cal. Rptr. 3d at 16 (citing U.S. v. Paguio, 114 F.3d 928 (9th Cir. 1997)).

Justice Kruger eventually holds that Morris’ full out-of-court statement – that he murdered without Grimes’ participation – was trustworthy as an inculpatory type of statement, and that the exclusion of Grimes’ lack of participation was “not harmless” as to the death sentence. In other words, through the use of the declaration against interest hearsay exception, Grimes was still convicted of murder as part of a conspiracy, but he would not be sentenced to death.


Why does all this criminal law matter to family law attorneys? Remember, Evidence Code section 1230 applies both to criminal and civil cases. Careful study of case law demonstrates that a statement against penal interest is brought to court in the same way as a statement against pecuniary or proprietary interest.
First, when possible, always try to prove the liability of a third party to the community through other means such as business records and available witnesses. However, once the litigator must put on evidence of a declaration against interest by an unavailable witness, proof of every element of the statute will be important, including, as in the Grimes case, how much of the statement will be allowed in over objection. A lawyer should not attempt to bring in statements that are clearly exculpatory in nature, such as “none of the business partners concealed assets, and the partner who is a family law litigant didn’t do anything wrong either.” This type of statement would be deemed so untrustworthy that it could affect one’s legal reputation, would not be “worth a shot,” and would merely irritate the judge.

✦𝕃𝕃✦ Osborne v. Todd Farm Service, 202 Cal. Rptr. 3d 84 (2016).

#LLEthicsMalp, #LLEvidCode, #LLWtnLay

There are many excellent examples in civil law of a lawyer’s proper use of the declaration against interest hearsay exception—this is not one of them! This case turns on attorney misconduct but demonstrates “what not to do” in declarations against interest, motions in limine, expert witness designations, and lay opinion. The combination of bad acts by the plaintiff’s lawyer and his client all resulted in terminating sanctions.


Plaintiff Osborne, a barn worker, sued a delivery company and a hay bale manufacturer for injuries caused when she fell from the top of a stack of hay bales, at least one of which was defectively manufactured, and which gave way when she walked on it. A key issue was the identity of the manufacturer of the defective bale.

Having failed to timely designate an expert, submit a witness list, or obtain underlying authenticated documents, attorney for plaintiff had no one to put on but his client and her opinions. The attorney improperly sought to introduce plaintiff’s testimony about out-of-court statements purportedly made by an unavailable driver who allegedly worked for defendant delivery company. That unavailable driver allegedly admitted that he delivered several manufacturers’ hay bales, including those of defendant manufacturer. The unavailable witness allegedly told plaintiff Osborne that he could identify the manufacturer of the defectively bundled hay bales, among other statements.


Although excluded in limine, and despite repeated warnings throughout the trial, plaintiff persisted in attempting to testify and to argue that plaintiff’s retelling of the delivery driver’s alleged statements regarding the source of the offending bale were admissible under the Evidence Code section 1230 — Declaration against interest or under Evidence Code section 1222 — Authorized admission hearsay exceptions.

The appellate court affirmed the trial court’s mid-trial ruling of a dismissal with prejudice as a terminating sanction against both the attorney and plaintiff for repeated failure to follow the court’s in limine orders. The appellate court also found that plaintiff had not reached the manufacturer with her unreliable testimony, “[e]ven if the testimony would have been admissible against the co-defendant delivery company, it was hearsay with respect to co-defendant hay bale manufacturer.” Id. at 94.

As discussed in Grimes above, the use of a declaration against interest hearsay exception means proving very specific, even onerous elements so that the reliability (trustworthiness) of the out of court statement is made manifest. In the right situation, a family lawyer may use the exception, but the precision in presentation of each piece of the puzzle will only be successful with careful advance planning.

Usage and Discussion

As always, we have attempted to delay our reporting long enough for notice of further appeal, late publication, or de-publication to occur. However, lawyers who use a tip that is case specific should research all recent cases for themselves.
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 would enjoy sharing your tips here.

1 Cal. Prac. Guide Civ. Trials & Ev. ch. 8D-D, ¶ 8:1146.