Attorneys for Plaintiff GLENN HORN
 

THE EVIDENCE FOR THE ADMISSION OF THE ALLEGED HEARSAY STATEMENT IS UNTRUSTWORTHY, AND THEREFORE MUST NOT BE ADMITTED.

The court at the threshold must have presented to them by defendant evidence that (1) plaintiff heard the alleged statement, and (2) plaintiff was in a condition to respond, i.e., he was free of emotional and physical impediments, and (3) the alleged statement was one that plaintiff would have responded to.

California Evidence Code Section 702(a) provides:

(a) Subject to Section 801 [Opinions of Experts], the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify. [Emphasis added.]

The Law Revision Commission Comments to the above cited section explain;

If a timely objection is made that a witness lacks personal knowledge, the court may not receive his testimony subject to the condition that evidence of personal knowledge be supplied later in the trial. Section 702 thus limits the ordinary power of the court with respect to the order of proof.

California Evidence Code Section 403(a) further provides:

The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when:

(1) The relevance of the proffered evidence depends on the existence of the preliminary fact;

(2) The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony;

(3) The preliminary fact is the authenticity of a writing; or

(4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. [Emphasis added]

In the present case, Mr. Fleitz at deposition could not remember when he wrote the report, nor could he remember where he got the information as to Mr. HORN's alleged loss of balance. (Deposition of Mitchell Fleitz, pp. 28-30, 51-53.) Indeed, Mr. Fleitz said that he was basing his testimony on his report (p. 54), and that writing "lost balance" in a report (p. 28) was merely a general statement. (p. 31.) He also stated that he believed he got the information that Mr. HORN lost his balance from someone other than Mr. HORN. (p. 29.) He further testified that he would have taken information about the fall from the other people at the scene, (pp. 31, 52) but that he did not have any recollection as to who told him the statement. (p. 53.) Both other persons at the scene, Thomas Fezette and David Barnes, have testified that they did not see plaintiff fall. Further, Mr. Fleitz cannot recall what Mr. HORN's response was.

A witness must have personal knowledge of the matter he is to testify to. This requires him to have had the capacity to perceive, the ability to communicate, and the ability to recall. (People v. St Andrew (1980) 101 Cal.App.3d 450, 458.) Given the deposition testimony of Mr. Fleitz, it can be ascertained that he does not recall who made any such statement and he cannot recall Mr. HORN's alleged adoptive words or conduct, therefore Mr. Fleitz is not qualified to testify as to such statement. Further showing Mr. Fleitz's inability to recall is his deposition testimony that the ladder was a six to eight foot wooden "A-frame" ladder, when all testimony and admissions hitherto have been that the ladder was a longer aluminum extension ladder. (p. 43-44.)

ADOPTED ADMISSIONS MAY BE ADMITTED AS AN EXCEPTION TO THE HEARSAY RULE; HOWEVER, THEY ARE ESPECIALLY WEAK FORMS OF EVIDENCE WHEN INFERRED SUCH AS BY FAILURE TO DENY.

California Jurisprudence Third explains the probative force of out-of-court admissions generally:

[E]vidence of oral admissions by a party should be received with caution⁽¹⁾ where there is no satisfactory independent corroboration.⁽²⁾ This is especially true where the party making the alleged admission is dead or incompetent,⁽³⁾ or where the admissions is inferential rather than direct and explicit.⁽⁴⁾ (31 Cal.Jur.3d, Evidence, § 247, pp. 319-320.)

AN ADOPTED STATEMENT MUST BE (1) HEARD AND (2) UNDERSTOOD BY THE PARTY (3) IN SUCH CIRCUMSTANCES THAT WOULD NORMALLY CALL FOR A RESPONSE IF THE STATEMENT WERE UNTRUE. IT IS CRUCIAL TO THIS DETERMINATION THAT THERE ARE NO PHYSICAL OR EMOTIONAL IMPEDIMENTS PRESENT.

A. In order for a statement to be adopted, the statement must be heard by the party against whom it is being offered.

At deposition, Mr. Fleitz could not remember when he wrote the report, nor could he remember where he got the information as to Mr. HORN's alleged loss of balance. (Deposition of Mitchell Fleitz, pp. 28-30, 51-53.) If a statement regarding Mr. HORN's loss of balance had come from David Barnes, it is suspicious as a self-serving allegation of a representative of SUN RESTORATION. If it had come from David Barnes or Thomas Fezette, there is no evidence that Glenn Horn heard it, because as Mr. Fleitz testified at the 402 hearing of July 18, 1997, when Mr. Fleitz arrived at the scene, everybody was talking, trying to get their story out. Mr. Fleitz did say that he would generally confirm such statements with patients, but he could not recall what he or anyone else at the scene said. The question remains, did he confirm that Mr. HORN fell or that Mr. HORN lost his balance. It must be noted that the scene was a medical emergency, there was a lot of noise from the moving of people and equipment and the excited conversations. Before the adoption of an alleged statement can be admitted into evidence, it must be shown by the party seeking admission of the statement, that the party it is being offered against actually heard the statement. No such showing can be made.

B. In order for a statement to be adopted, the statement must be understood by the party against whom it is being offered.

Mr. Fleitz referred to the question regarding Mr. HORN's loss of balance and falling as a "general statement". Many people understand the terms "falling" and "losing balance" as generally synonymous. The term "losing balance" is also ambiguous -- sometimes referring generally to the state of falling. Here, it is unclear whether Mr. HORN heard any such words as "losing balance," and if he did hear such words, whether he understood them as a general description of his falling from the ladder, or if he understood such words as an admission of some fault on his part. Even if Mr. HORN heard words to the effect that he lost his balance, there can be no showing that these words were understood as an admission of fault, for the very fact that such words are vague.

C. In order for a statement to be adopted, the statement must be made under circumstances allowing for a free and spontaneous response by the party whom the statement is being offered against, and the statement should be made in a manner normally requiring a response.

At page 461 of McCormick on Evidence, section 262, Prof. McCormick discusses admissions adopted by silence, explaining:

[C]ourts have evolved a variety of safeguards against misuse: (1) The statement must have been heard by the party claimed to have acquiesced. . . . (4) Physical or emotional impediments to responding must not be present.

California Jurisprudence Third explains:

Statements made in the presence of a party are not receivable against him on the basis of failure to deny unless it clearly appears that, having heard and understood them, he stood silent and did not contradict the statements under circumstances where acquiescence may be fairly implied from silence, or unless the statements are followed by some conduct from which assent may be inferred.⁽⁵⁾ Failure to deny the assertions of others by one not under a duty to speak does not amount to an admission.⁽⁶⁾ (31 Cal.Jur.3d, Evidence, § 235, p. 304. Emphasis added.)

This point was captured in People v. Simmons (1946) 28 Cal. 2d 699, at 715:

[T]he determinative point is not whether the defendant is under arrest at the time of the accusation, but is whether the circumstances are such that a reply is called for and the defendant is free to speak. Arrest is but one form of restraint that at times might bar a free response. Many other forms of restraint have the same effect, such as fear, physical pain, suffering. . . ."

And in Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526, at 534, the court explained:

Where circumstances do not indicate a party would be bound to deny a statement, conduct of the party in the face of the accusation has no effect, and it is not error to refuse to admit testimony regarding it.

In the present case, plaintiff had just broken seven ribs and felt like his lungs were filling with fluid. Plaintiff described the feeling as suffocating. He was short on breath, and he probably was not inclined to speak other than to express his pain and anxiety over his physical condition. These are not the sort of circumstances that would allow for a free and spontaneous response on issues of causation.

ADOPTIVE ADMISSIONS ARE NOT ADMITTED TO PROVE THE TRUTH OF THE CONTENTS OF THE STATEMENT, BUT ARE RECEIVED ONLY TO SHOW THE PARTY'S REACTION TO THE STATEMENT.

Gilbert. v Los Angeles (1969) 249 Cal.App.2d 1006, at 1009:

The controlling principles in our case are as set forth in Estate of Neilson, supra, 57 Cal.2d 733, 746- 747: "When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. . . ." [Emphasis added.]

It is unclear whether Mr. HORN heard any such statement, and even if he did, it is unclear what his response was. The very reason for receiving any such statement would be to show plaintiff's response. Since this cannot be shown, there is no reason for allowing the proffered declaration into evidence.

Defendant has not met the burden of showing: (1) that plaintiff heard any statement regarding his alleged loss of balance; (2) that the alleged statement, if heard, was understood by plaintiff as an admission of fault; (3) that the circumstances allowed for a free and spontaneous denial of the alleged statement, and it would be normal to deny the alleged statement under the circumstances; and (4) what, if any, was plaintiff's response to the alleged statement. Therefore, plaintiff prays that the court rule that Mr. Fleitz's recorded statement not be admitted or commented on during trial.

DATED: July ______, 1997

Respectfully submitted,
MACHADO & COUSINS
JESSICA J. HANLON

Attorney for Plaintiff.

1. Milliken v. Bank of Italy, 66 CA 507, 226 P 640; Frank Meline Co. v Kleinberger, 108 CA 60, 290 P 1042.

2. Herbert v Landershim, 9 C2d 409, 71 P2d 220.

3. [Citations deleted because there is no issue as to death or incompetence.]

4. Hotaling v Hotaling, 187 C 695, 203 P 745.

5. People v Mallon, 103 C 513, 37 P 512; Henderson v Northam, 176 C 493, 168 P 1044; Henshall v Coburn, 177 C 50, 169 P 1014; Gilbert v Los Angeles, 249 CA2d 1006, 58 Cal Rptr 56.

6. Ogilvie v Aetna Life Insurance. Co., 189 C 406, 209 P 26, 26 ALR 116.