MACHADO & COUSINS
ATTORNEYS AT LAW
John J. Machado, SBN 66667
Scott L. Johnson, SBN 184295
1500 J Street, Second Floor
Modesto, CA 95354-1123
Telephone: (209) 578-4341
Facsimile: (209) 578-4266

Attorneys for Plaintiff LORENE RICHARDS

SUPERIOR COURT OF CALIFORNIA

COUNTY OF STANISLAUS
 
LORENE RICHARDS, 
 
Plaintiff, 
 
v. 

CONSOLIDATED PROPERTY MASTERS, INC., dba ALMOND TERRACE APARTMENTS, et al. 

Defendants. 

 ) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 		  No. 34072 
 
PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE NO. 9 TO EXCLUDE HEARSAY EVIDENCE ALLEGEDLY CREATED BY THE NOW-DECEASED MANAGER OF THE COMPLEX AT THE TIME OF THE INCIDENT
 
DEFENDANT'S DID NOT PRODUCE THEIR ALLEGED "PROJECT LOSS REPORT" ON THE BASIS OF ATTORNEY WORK PRODUCT PROTECTION, AND IT IS A SET OF DOCUMENTS GENERATED IN ANTICIPATION OF LITIGATION. IT THEREFORE DOES NOT FALL WITHIN THE BUSINESS RECORD EXCEPTION OF THE HEARSAY RULE [EVID.CODE § 1270 et seq.] BECAUSE IT DOES NOT POSSESS THE SAME TRUSTWORTHINESS OF BUSINESS RECORDS REGULARLY RELIED ON BY A BUSINESS IN THE CONDUCT OF ITS TRANSACTIONS.
 
Prior to arbitration of this case, during discovery, defendants withheld from plaintiff certain documents, including an alleged "Project Loss Report" regarding plaintiff's slip and fall on September 1, 1994, under the attorney-work product privilege because, according to defendants' attorney, the documents were created "in anticipation of litigation" by Loretta Jean St. Claire, the Resident Manager for Almond Terrace Apartments at or around the time of the incident. Ms. St. Claire passed away in March 1995.

On the eve of the arbitration, defendants suddenly produced the documents, referred to as an alleged "Project Loss Report" and announced their intention to submit the documents as evidence presumably to attempt demonstrate that there existed no leakage problems in the complex's laundry facilities which could have caused plaintiff to slip and fall on September 1, 1994.

Plaintiff believes that, as they argued in their arbitration brief, defendants likely will attempt to introduce the documents at trial under the guise of the "business records" exception (Evid.Code § 1271).

Evidence Code Section 1271, entitled "Business record," provides:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(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. [Emphasis added.]

Bernard S. Jefferson, in his California Evidence Benchbook, explained:
The testimony of the custodian or other qualified witness as to the identity and mode of preparation of the writing is highly important. It is the testimony of this witness that primarily enables the trial judge to determine the existence or nonexistence of the various requirements for this hearsay exception, namely: (1) whether the writing was made in the regular course of a business; (2) whether the writing was made at or near the time of the act, condition, or event recorded; and (3) whether the sources of information and the method and time of preparation were such as to indicate the reliability of the writing, which is perhaps the most significant of all the requirements.
 
* * *
 
[A] report prepared for litigation, such as an accident report prepared by a business that might become a party to litigation as a result of an accident on its premises, is not looked upon as having been made in the regular course of business, because it is prepared for use primarily in court, not in the business itself. (1 Jefferson, California Evidence Benchbook (2d ed. 1982) pp. 210-211. Emphasis added.)
In the instant case, according to defendants' own admission, the documents entitled "The Project Loss Report" were created by Ms. St. Claire "in anticipation of litigation." In other words, to characterize the documents as "work-product" was to affirm the inherent deliberate self-serving thought process of an author conscious of creating potential evidence for and on behalf of defendants, and intended to support defendants', and to refute plaintiff's, respective positions. They are an accident report "prepared for use primarily in court, not in the business itself." (Ibid.) Ms. St. Claire is now deceased, and so cannot testify as to the most significant requirement for determining whether these documents fall within the business record exception to the hearsay rule, i.e., "whether the sources of information and the method and time of preparation were such as to indicate the reliability of the writing." (Ibid.) Furthermore, the documents are replete with contraindications of trustworthiness, which require their exclusion under Evidence Code Section 1252.

For instance, the alleged "Project Loss" form contains alleged hearsay statements of an unnamed "different tenant" and refers generally to a purported, yet apparently undocumented, "inspection" conducted by Ms. St. Claire, who already had the opinion that there could not have been a leak in the offending washer because a leak had been fixed two months prior to plaintiff's accident. Moreover, a hand-written note refers to Ms. St. Claire having received "this" from plaintiff, but the "this" is not described. The note further reports that Ms. St. Claire talked to Ms. Green who reported that the washers did not leak when she used them on the day of the incident; however, a hand-written note, presumably signed by Ms. Green, is said to confirm that the offending washer did not leak as plaintiff claimed. The note, however, contains two dates, "9-15-92" and "9-6-92" -- two years prior to plaintiff's slip and fall.. Likewise, a letter dated (and therefore, one would believe was also written on) September 13, 1994, contains entries dated September 14, 1994, and September 16, 1994; and a "NCHM Recertification Compliance Workbook," which also was not produced during discovery.

THE ALLEGED "PROJECT LOSS REPORT" IS ONLY BEING OFFERED TO SHOW THAT THE WASHER IN ISSUE WAS NOT LEAKING ON THE DATE OF PLAINTIFF'S INJURY. HOWEVER, THIS CAN ONLY BE SHOWN BY INADMISSIBLE OPINION OF AN EMPLOYEE NO LONGER AVAILABLE FOR QUESTIONING, AND THE OBSERVATIONS OF A NON-EMPLOYEE DATED TWO YEARS PRIOR TO THE INCIDENT. BOTH TYPES OF STATEMENT FALL OUTSIDE THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE.

Particular parts of "The Project Loss Report" are particularly objectionable as hearsay, not falling under the business record exception, viz., (1) Ms. St. Claire's opinion that the washer could not have been leaking due to its prior alleged repair some months earlier, and (2) the statement dated 1992 reciting that the washers were not leaking, signed by Ms. Green, a non employee with no business duty to report or to investigate such matters.

As to Ms. St. Claire's opinion that the washer could not have been leaking because it had allegedly been repaired, this is not an observation of "an act, condition, or event," (Evid.Code § 1270) but it is a conclusion based upon Ms. St. Claire's thought processes which are not available for cross-examination due to her intervening death. As People v. Williams (1960) 187 Cal.App.2d 355 instructs at page 365:

In order for a record to be competent evidence under that section it must be a record of an act, condition or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion; it may or may not be founded upon sound reason; the person who has formed the conclusion recorded may or may not be qualified to form it and testify to it. Whether the conclusion is based upon observation of an act, condition or event or upon sound reason or whether the person forming it is qualified to form it and testify to it can only be established by the examination of that party under oath. [Emphasis added.]

As to the proffering of the handwritten note of Ms. Green dated on two dates in September 1992, it must be noted that Ms. Green was not the author of the Report nor an employee with a business duty to investigate and report on such matters. Again, Bernard S. Jefferson is instructive on this point:

Generally, if the evidence in a particular case discloses that the entries in a written business record are not based upon the personal knowledge of the recorder or upon the personal knowledge of an informant-employee having a business duty to observe accurately and report his observations accurately to the recorder-employee, the business record involved is not considered trustworthy hearsay and is not admissible under the business-record exception to the hearsay rule. (1 Jefferson, California Evidence Benchbook (2d ed. 1982) p. 212.)
Defendants, therefore, should be precluded from attempting to introduce purported evidence of, or referring in any way, to the contents of the alleged "Project Loss Report." These documents do not fall within the business record exception to the hearsay rule, because they have been prepared for litigation in court. They do not possess any of the indicia of trustworthiness of documents generated by a business for the purpose of the business's relying on the accuracy of such documents in the conduct of its transactions. Moreover, defendants are trying to show that the washer in question was not leaking based upon the opinion of Almond Terrace's Resident Manager, and the alleged observations of a non-employee dated two years prior to the accident. Finally, defendants should not reap the benefits of unscrupulous litigation tactics, particularly in these circumstances which indicate that the evidence and/or information is completely suspect and untrustworthy.

DATED: September 29, 1997

Respectfully submitted,
MACHADO & COUSINS
 
 
Scott L. Johnson
Attorneys for Plaintiff