SELECT NEW DEVELOPMENTS IN THE 2019 EDITION
Evidence Code Section 177. Effective Jan. 1, 2019, the definition of a “dependent person” is not determined by whether the person lives independently.
Evidence Code Sections 351.3 and 351.4. Effective Jan. 1, 2019, a person’s immigration status is inadmissible in most civil actions and in all criminal actions absent an in camera hearing.
Evidence Code Section 953. Effective Jan. 1, 2019, the definition of the “holder of the privilege” excludes a guardian or conservator who has a conflict of interest with the client.
Evidence Code Section 1035.2. Effective Jan. 1, 2019, a “sexual assault counselor” will include a person who is engaged in a program on the campus of a public or private institution of higher education and meets certain criteria.
Evidence Code Sections 1122 and 1129. Effective Jan. 1, 2019, attorneys must, as soon as reasonably possible before a client agrees to participate in a mediation consultation or session (or as soon as reasonably possible after being retained by a client who has already agreed to participate in a mediation consultation or session), provide the client with a printed disclosure that explains the confidentiality restrictions related to mediation. The attorney must also obtain a signed acknowledgment from the client stating that he or she has read and understands the confidentiality restrictions.
Relevant evidence. Tapes of the defendant’s interviews with the police were relevant to the key witness’s credibility. People v Mora & Rangel (2018) 5 C5th 442, 480. See Evid C §210.
Evidence of stray voltage incidents at other houses and at plaintiff’s house before she bought it was not relevant to plaintiff’s nuisance claim, which must be based on interference with plaintiff’s use and enjoyment of her property. Wilson v Southern Cal. Edison Co. (2018) 21 CA5th 786, 806. See Evid C §210.
Judicial notice. In the following cases, the court did not take judicial notice of requested matters: Huff v Securitas Sec. Servs. USA, Inc. (2018) 23 CA5th 745, 774 n1 (judicial notice denied because documents not relevant to determination of issues on appeal); Candelore v Tinder, Inc. (2018) 19 CA5th 1138, 1156 n9 (court denied request for judicial notice of group data on income by age because it does not justify alleged discrimination). See Evid C §452.
Qualification as expert witness. The trial court abused its discretion by refusing to qualify an expert in database management and analysis; court of appeal stated that questions on the “degree of an expert’s knowledge go more to the weight of the evidence presented than to its admissibility.” ABM Indus. Overtime Cases (2017) 19 CA5th 277, 294. See Evid C §720.
Cross-examination of expert witness. The breadth of permissible cross-examination of an expert does not extend to admission of case-specific testimonial hearsay in violation of defendant’s right of confrontation. People v Malik (2017) 16 CA5th 587, 597. See Evid C §721.
Opinion testimony by expert witness. The following cases considered whether expert opinion testimony was proper: Property Cal. SCLW One Corp. v Leamy (2018) 25 CA5th 1155, 1063 (trial court properly excluded expert’s declaration on summary judgment for lack of foundation); Knutson v Foster (2018) 25 CA5th 1075, 1097 (emotional distress due to stress and pressure from swimming performance markers did not require expert testimony because it is not beyond common experience of jurors); Eng v Brown (2018) 21 CA5th 675, 709 (expert testimony does not need to respond to another expert’s testimony to be relevant, probative, and admissible). See Evid C §801.
Psychotherapist-patient privilege. The patient’s conservator holds the privilege. Conservatorship of S.A. (2018) 25 CA5th 438, 445. See Evid C §1013.
Attorney-client privilege. Due diligence documents prepared before Uber’s acquisition of Otto were not protected attorney-client communications in arbitration between Otto’s founders and their former employer. Uber Technols. v Google (2018) 27 CA5th 953, 966. See Evid C §952.
Because the attorney-client privilege vests in the office of trustee, not in any particular person, a trust provision permitting the trustee to withhold documents from a successor trustee “violates public policy and is unenforceable.” Morgan v Superior Court (2018) 23 CA5th 1026, 648. See Evid C §953.
Character evidence to prove conduct. The trial court properly admitted evidence that the defendant was planning to commit similar crimes to the crimes with which he was charged. People v Case (2018) 5 C5th 1, 38. See Evid C §1101.
The court rejected the theory that would allow any prior assault against any family member to be admitted in the prosecution for assault against another family member because of insufficient similarity with the prior incidents. People v Williams (2018) 23 CA5th 396, 420. See Evid C §1101.
Evidence of other sexual offenses. Trial court did not abuse its discretion in admitting evidence of prior acts of sexual assault in capital murder trial. People v Daveggio & Michaud (2018) 4 C5th 790, 824. See Evid C §1102.
Evidence to test verdict. Response to a question asking a juror about her thoughts as she was hearing evidence was properly struck. In re Manriquez (2018) 5 C5th 785, 800. See Evid C §1150.