SIMONSCALIFORNIA

EVIDENCE MANUAL

2020 EditionIssued in January 2020

By

JUSTICE MARK B. SIMONS

THE EXPERT SERIES

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This publication was created to provide you with accurate and authoritative in-formation concerning the subject matter covered; however, this publication wasnot necessarily prepared by persons licensed to practice law in a particularjurisdiction. The publisher is not engaged in rendering legal or other profes-sional advice and this publication is not a substitute for the advice of anattorney. If you require legal or other expert advice, you should seek the ser-vices of a competent attorney or other professional.

ISBN 978-1-539-28116-0

Highlights for the 2020 Edition

E Evidence of industry custom and practice may be admis-sible in a strict products liability action. (Kim v. Toyota Mo-tor Corp., 6 Cal.5th 21, 26 (2019).) Note 1:8.

E A misleading cross-examination by the defendant may openthe door under Evidence Code section 356 to admission offurther testimony by the witness previously excluded bythe court. (People v. Westerfield, 6 Cal.5th 632, 695-697(2019).) Notes 1:16 and 1:28.

E The witness who provides the foundation for a business rec-ord need not be the custodian of records and need not havepersonal knowledge of every transaction. It is sufficient ifthe witness is familiar with the procedure followed in mak-ing entries. (Conservatorship of S.A., 25 Cal.App.5th 438,448 (2018).) Note 2:62.

E People v. Dalton, 7 Cal.5th 164, 213-214 (2019) overturnedprior precedent and ruled that when cross-examining a wit-ness regarding the witness’s prior felony conviction theexaminer may inquire about the details of the offense.Previously the examiner was limited to asking only aboutthe nature and date of the offense. Note 3:61.

E Dalton also confirmed that when a cross-examiner hasintroduced multiple different motives for the witness totestify falsely, a prior consistent statement may be intro-duced if it preceded any of those motives. (People v. Dalton,7 Cal.5th 164, 234-235 (2019).) Note 2:43.

E Sweetwater Union High School District v. Gilbane Bldg.Co., 6 Cal.5th 931, 945, 949 discussed the admissibility ofdeclarations at a hearing on an anti-SLAPP motion. Sweet-water clarified that the test is not simply whether the evi-dence, as presented, is admissible at the hearing. Instead,the test is whether it is reasonably possible that the evi-dence in the declaration will be admissible at trial. Amongthe interesting issues raised by Sweetwater is whether thecase will impact expert declarations challenged under theSargon or Sanchez cases at a motion for summaryjudgement. Notes 4:22 and 4:31.

E Given the nature of text messaging, the fact that adefendant did not text his mother back denying her accusa-tions is not an adoptive admission. Text messaging is differ-ent from in person and phone conversations in that text ex-changes are not always instantaneous and do not

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necessarily occur in real time. (People v. McDaniel, 38Cal.App.5th 986, 999 (2019).) Note 2:29.

E In Berroteran v. Superior Court, 41 Cal.App.5th 518, 529-534 (2019) the court disagreed with Wahlgren v. ColecoIndustries, Inc., 151 Cal.App.3d 543, 547-547, 198 Cal.Rptr.715 (4th Dist. 1984). Wahlgren had set out a categorical barto admitting deposition testimony under section 1291 (for-mer testimony offered against party to former proceeding)“based on the unexamined premise that a party’s motive toexamine its witnesses at deposition always differs from itsmotive to do so at trial.” (Berroteran, 41 Cal.App.5th at p.529.)

CALIFORNIA EVIDENCE MANUAL

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Dedication

This book is dedicated to my wife, Carol, who gave up someevenings and many weekends so it could be written. Her love, pa-tience, and support were critical to its completion.

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About the Author

After serving as a trial judge in the municipal and superiorcourts of Contra Costa County for over twenty years, the Hon.Mark B. Simons was appointed to the California Court of Appeal,First District in January 2001. He has served as the Dean of theB.E. Witkin (California) Judicial College, where he currentlyteaches evidence to new judges. He has lectured to numerouslawyers’ and judges’ groups on practical evidence problems thatcommonly arise in litigation. In 2000 and 2010, he received theBernard Jefferson Award for Excellence in Judicial Educationfrom the California Judges Association. In 2014, Justices Simonsand Corrigan were jont recipients of the first annual Distin-guished Service Award in Judicial Education from the CaliforniaJudicial Council.

Justice Simons received his undergraduate degree from theUniversity of Michigan in 1967 and his law degree from theUniversity of Chicago in 1970, where he was a member of theeditorial board of the law review. In addition to several law reviewarticles, Justice Simons has written California Preliminary Ex-aminations (Lexis), published annually since 1987.

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Acknowledgments

No book of this size can be written without the assistance of alarge number of people. In addition to the assistance of the edi-tors of West with the editions since 1998, the management ofParker Publications provided encouragement throughout thebook’s early gestation period. Since becoming involved in thisproject, I have been the fortunate recipient of numerous callsfrom friends and colleagues wanting to discuss an “interestingevidence question.” Never an imposition, these calls have oftenbeen an inspiration for one or more comments in the book.

I owe a great debt to Contra Costa County Superior CourtJudge Barbara Zuniga (ret.) and to First District Court of Appeal,Justice James Marchiano (ret.), who each read the manuscript atdifferent stages of completion. I greatly appreciate the numerousinsights into the law and suggestions concerning the text eachprovided.

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Preface

Any author of a new book on evidence has to be able to answerthe question, What does this book offer that has not been offeredbefore? Four factors combine to make this text unique. First, it isportable, that is, designed to be carried easily to court. It isunrealistic to believe that even experienced litigators will recallall the answers to the numerous evidentiary questions that ariseduring a hearing or trial. Judges, however, often require ananswer promptly, not after an evening’s research in the library. Aconcise description of evidence, such as the one contained here,eliminates this dilemma.

Second, this book contains a thematic discussion of evidence.It is divided into the ten primary areas of concern to the litigatorand includes all Evidence Code sections and major cases discuss-ing the subjects.

Third, this book contains an up-to-date discussion of the new-est code revisions and appellate cases. (Amendments to the Evi-dence Code, operative January 1, 2020 are included and casespublished through 8 Cal. 5th 174 and 39 Cal. App. 5th 608 arediscussed.) Emerging trends in the law of evidence are noted andcommented upon. Sufficient analysis of the law is provided sothat the litigator can reason from the particular fact situationsdiscussed to the actual fact situation in the case being tried.

Finally, and of particular benefit to the new lawyer, short,common-sense examples of the application of the evidence rulesare found throughout the text.

No other text combines all these features and offers the userthe convenience and benefits of each.

JUSTICE MARK B. SIMONSSan Francisco, California

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RELATED PRODUCTS

WITKIN TREATISES

Summary of California Law

California Procedure

California Evidence

California Criminal Law (with Norman Epstein)

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CALIFORNIA JURISPRUDENCE

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JURY INSTRUCTIONS

California Jury Instructions—Civil (BAJI)

Judicial Council of California Civil Jury Instructions (CACI)

California Jury Instructions—Criminal (CALJIC)

Judicial Council of California Criminal Jury Instructions (CALCRIM)

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CALIFORNIA CIVIL PRACTICE

Business Litigation

Civil Rights Litigation

Employment Litigation

Environmental Litigation

Family Law Litigation

Probate and Trust Proceedings

Procedure

Real Property Litigation

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Torts

Workers’ Compensation

[Also available on CD-ROM]

CALIFORNIA LITIGATION AND TRANSACTIONS FORMS

West’s California Litigation Forms: Civil Procedure Before Trial

West’s California Litigation Forms: Civil Trials and Evidence

West’s California Litigation Forms: Civil Appeals and Writs

California Transactions Forms: Business Entities

California Transactions Forms: Business Transactions

California Transactions Forms: Family Law

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CALIFORNIA PRACTICE GUIDES AND HANDBOOKS

California Insurance Law Handbookby John K. DiMugno and Paul E.B. Glad

California Insurance Law Reporter

California Medical Malpracticeby George McDonald

California Tort Reporter

California Family Law Practice Library on CD–ROM

THE EXPERT SERIES

Bassett on California Community Property Lawby William W. Bassett

California Legal Filing Directoryby Erlanna L. Lohayza

Caskey California Search and Seizureby The Honorable Gregory M. Caskey

Cohelan on California Class Actionsby Timothy D. Cohelan

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Cornblum California Insurance Law Dictionary andDesk Reference

by Bruce Cornblum

Dunne on Depositions in Californiaby Kevin J. Dunne

Hanna & Van Atta on California Common Interest Develop-ments

by John Paul Hanna and David M. Van Atta

Levenson & Ricciardulli on California Criminal Lawby Laurie L. Levenson and Alex Ricciardulli

Levenson on California Criminal Procedureby Laurie L. Levenson

Olson California Business Law Deskbookby Brent A. Olson, Esq.

O’Neill on California Confessions Lawby The Honorable Vincent J. O’Neill, Jr.

Overly on Electronic Evidence in Californiaby Michael R. Overly

Schwing on California Affirmative Defensesby Ann Taylor Schwing

Simons California Evidence Manualby Justice Mark B. Simons

Sink California Subpoena Handbookby John M. Sink

Thomas California Civil Courtroom Handbookand Desktop Referenceby Michael Paul Thomas

Thomas, Kelegian & Gutierrez on California Premises Liabilityby Michael Paul Thomas, Mark A. Kelegian, and Paul D. Gutierrez

Vanitzian California Common InterestDevelopment—Homeowner’s Guide

by Donie Vanitzian

Younger and Bradley on California Motionsby Judge Eric E. Younger (ret.) and Donald E. Bradley

Zebrowski, Adler & Malingagio on CaliforniaPrejudgment Money Remedies

by Justice John Zebrowski, Barry Adler and Paul S. Malingagio

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Mexican Legal Dictionary and Desk Referenceby Jorge A. Vargas

REAL ESTATE PRACTICE

California Real Estateby Harry Miller and Marvin Starr

California Real Estate Formsby Alexander Hamilton

California Real Property Digest

Real Estate NewsAlert

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California Construction Law Manualby James Acret

California Construction Law Digests

California Construction Law Reporter

California Land Use Procedureby J.R. Ramos

California Foreclosureby Margaret Sheneman

California Real Estate Practice Library on CD–ROM

CRIMINAL PRACTICE

West’s California Criminal Lawby Douglas Dalton

California Criminal Defense Motions Forms Manualby Albert Menaster

California Criminal Trialbookby Harry M. Caldwell, Sue Steding and Gary Nichols

California Criminal Practice: Motions, Jury Instructions andSentencing

by Edward A. Rucker and Mark E. Overland

California Drunk Driving Defenseby Lawrence Taylor

CALIFORNIA EVIDENCE MANUAL

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California Criminal Practice Library on CD–ROM

JURY SELECTION PRACTICE BOOKS

Bennett’s Guide to Jury Selection and Trial Dynamics:California Criminal Litigation

Bennett’s Guide to Jury Selection and Trial Dynamics:California Civil Litigation

by Cathy E. Bennett, Robert B. Hirschhorn and Dr. Jo–Ellan Dimitrius

WEST’S CALIFORNIA CODE FORMS

Business and Professionsby Joel S. Primes

Civilby Jeanne P. Robinson

Civil Procedureby Gregory L. Ogden and Daryl Fisher–Ogden

Commercialby Stephen N. Hollman and Ray D. Henson

Corporationsby Janet E. Kerr

Educationby Jay E. Grenig

Elections, Fish & Game, Food & Agricultural, Insuranceby Susan J. Orton

Familyby Margaret McAllister

Governmentby Jay E. Grenig and H. Anthony Miller

Probateby Ann E. Stodden and Timothy A. Whitehouse

Public Utilitiesby Boris H. Lakusta

Revenue and Taxationby Anthony X. McDermott

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RUTTER PRACTICE GUIDES

Alternative Dispute Resolution

Civil Appeals and Writs

Civil Procedure Before Trial

Civil Procedure Before Trial—Forms

Civil Trials and Evidence

Corporations

Enforcing Judgments and Debts

Family Law

Federal Civil Procedure Before Trial

Federal Ninth Circuit Civil Appellate Practice

Insurance Litigation

Landlord–Tenant

Law Practice Management

Personal Injury

Probate

Professional Responsibility

Real Property Transactions

[Also available on CD-ROM]

WEST’S ANNOTATED CALIFORNIA CODES

[Also available on CD-ROM]

BARCLAY’S OFFICIAL CALIFORNIACODE OF REGULATIONS

[Also available on CD-ROM]

WEST’S CALIFORNIA REPORTER

[Also available on CD-ROM]

CALIFORNIA EVIDENCE MANUAL

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WEST’S CALIFORNIA DIGEST

[Also available on CD-ROM]

WEST’S CALIFORNIA DESKTOP CODES

Unannotated Desktop Codes

California Civil Code

California Code of Civil Procedure

California Corporations Code

California Education Code

California Environmental Laws

California Evidence Code

California Family Laws and Rules

California Insurance Code

California Juvenile Laws and Rules

California Penal Code

California Probate Code

California Revenue and Taxation Code

California Vehicle Code

California Water Code

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California Business Statutes Annotated

California Civil Practice Statutes and Rules

Blumberg California Family Code Annotated

California Commercial Code Annotated

DiMugno and Glad California Insurance Laws Annotated

Dwyer & Bergsund California Environmental Laws Annotated

Imwinkelreid & Hallahan California Evidence Code Annotated

McGovern California Probate Code Annotated

Miller and Starr Real Estate Laws

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COURT RULES

Bay Area Local Court Rules—Superior and Municipal Courts

California Rules of Court, State and Federal

Central California Local Court Rules—Superior and Municipal Courts

Los Angeles County Court Rules—Superior and Municipal Courts

Northern California Local Court Rules—Superior and MunicipalCourts

Southern California Local Court Rules—Superior and MunicipalCourts

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