Elia V. Pirozzi
Mediator, Arbitrator, Referee/Special Master and Hearing Officer, JAMS
Stanley Mosk Courthouse
Alex Ricciardulli
Judge, Los Angeles County Superior Court
Appellate
UC Berkeley School of Law, 1987
The hearsay rule is one of the most common hurdles to the admissibility of statements and writings in court proceedings. Hearsay is a statement that is made, other than by a witness while testifying at a hearing or trial, which is offered to prove the truth of the matter stated and is inadmissible as evidence unless it falls under an exception to this rule. (Evid. Code (EC), § 1200.) The object of this article and self-study test is to review major exceptions to the hearsay rule in California civil cases, serving as a ready guide for responding to hearsay objections in the heat of litigation. (Although statements may be admissible under hearsay exceptions in criminal cases, litigants must comply with Crawford v. Washington, 541 U.S. 36 (2004) in order to respect the defendant’s Sixth Amendment constitutional right to confront witnesses.)
Statement of Then-Existing State of Mind or Physical State EC § 1250
A declarant’s statement about the declarant’s then-existing mental or physical state to prove such condition, or as evidence explaining acts or conduct of the declarant, is admissible.
Elements: (a) The declarant’s state of mind, emotion, or physical sensation at the time the statement was made must be at issue; (b) the statement must be a direct manifestation of the declarant’s state of mind, emotion, or physical sensation; and (c) circumstances must not indicate “lack of trustworthiness” pursuant to EC § 1252. (Rufo v. Simpson, 86 Cal.App.4th 573 (2001).)
Statement of Previously Existing State of Mind of Physical Sensation EC § 1251
A declarant’s statement concerning the declarant’s mental or physical state at a prior time is admissible to prove such a condition.
Elements: (a) The declarant must be unavailable per EC § 240; (b) the declarant’s state of mind, emotion, or physical sensation must be at issue; and (c) circumstances must not indicate “lack of trustworthiness” pursuant to EC § 1252. (Estate of Truckenmiller, 97 Cal.App.3d 326 (1979).)
Party Admissions and Confessions EC § 1220
A party’s out-of-court statement or assertive conduct offered by an opposing party is admissible.
Elements: (a) The declarant is a party; (b) the party-declarant made the statement; and (c) the statement is offered by a party opponent against the declarant. (Carson v. Facilities Development Co., 36 Cal.3d 830 (1984).)
Adoptive Admissions EC § 1221
A party’s adoption of something said by another in the other person’s presence – words, conduct or silence – is admissible if offered by the party opponent.
Elements: The party must: (a) have knowledge of the content of the other person’s statement (i.e., heard and understood the statement), and (b) by words or conduct adopt or express a belief in the truth of the statement. (Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81 (2003).)
Authorized Admissions EC § 1222
A statement made by someone authorized to speak for an opposing party concerning the subject matter spoken about is admissible if offered by a party opponent.
Elements: The declarant must be authorized by the party to either: (a) make the hearsay statement (express or implied), or (b) make the statement for the party regarding the subject matter of the statement. (Greenspan v. LADT LLC, 191 Cal.App.4th 486 (2010).)
Admission of Co-Conspirator EC § 1223
A statement made by someone in furtherance of a conspiracy to commit a crime or civil wrong is admissible.
Elements: (a) Existence of a conspiracy; (b) the declarant participated in the conspiracy when the statement was made; (c) the statement was made in furtherance of the conspiracy; and (d) at the time the statement was made, the co-conspirator party was participating in the conspiracy or would do so at a later time. (People ex rel. Reisig v. Acuna, 9 Cal.App.5th 1 (2017).)
Non-Party Declaration Against Interest EC § 1230
A statement contrary to the declarant’s penal, pecuniary, or social interest is admissible.
Elements: (a) The declarant is unavailable per EC § 240; (b) the declarant has sufficient knowledge of the subject matter; and (c) the statement is sufficiently against the declarant’s pecuniary, proprietary, or social interest. (Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal.App.5th 245 (2017).)
Prior Inconsistent Statement EC § 1235
A witness’s out-of-court statement about something inconsistent with the witness’s testimony at a trial or other proceeding is admissible.
Elements: (a) The statement must be used to contradict the testimony of a witness with the witness’s out-of-court statement (used as impeachment or substantive evidence); and (b) the proponent must comply with EC § 770 such that 1) extrinsic evidence of the prior statement is introduced, 2) the witness is given a chance to explain or deny the statement, and 3) the witness has not been excused from providing further testimony in the matter. (Forest Lawn Memorial-Park Assn. v. Superior Court, 70 Cal.App.5th 1 (2021).)
Prior Consistent Statement EC § 1236
A statement about something that is consistent with a person’s testimony, or offered to refute a charge of improper motive or fabrication, is admissible.
Elements: (a) The previous statement by the witness must be consistent with the witness’s testimony at the hearing (used as impeachment or substantive evidence); and (b) the proponent must comply with EC § 791 such that 1) the witness’s testimony is attacked as recently fabricated (express or implied) and the prior consistent statement was made before the “improper motive” to fabricate arose, or 2) the prior inconsistent statement was used to attack the credibility of the witness. (Box v. California Date Growers Assn., 57 Cal.App.3d 266 (1976).)
Past Recollection Recorded EC § 1237
A previous statement made by a witness concerning subject matter the witness cannot recall during testimony is admissible.
Elements: (a) The statement would have been admissible if made while the witness testified; (b) the witness has insufficient present recollection of the subject matter; (c) the statement is contained in a writing made when the events occurred and were fresh in the witness’s memory; (d) the writing was made by the witness or by someone under her supervision; (e) the witness testifies as to the statement’s truthfulness; and (f) the writing is sufficiently authenticated. (Seibert v. City of San Jose, 247 Cal.App.4th 1027 (2016).)
Former Testimony Offered Against a Party to a Former Proceeding EC § 1291
A statement made by a witness under oath concerning anything in a prior proceeding, and offered against a person who was a party to the proceeding in which the former testimony was given, is admissible if the declarant is unavailable as a witness.
Elements: (a) The declarant is unavailable per EC § 240; (b) the statement is offered against a party who offered it in evidence in the party’s own behalf; or (c) the party against whom the statement is offered was given and had the right and opportunity to cross-examine declarant with an interest and motive similar to which the party has in the current proceeding. (Berroteran v. Superior Court, 12 Cal.5th 867 (2022).)
Former Testimony Offered Against a Person who was not a Party to a Former Proceeding EC § 1292
A statement made by a witness under oath concerning anything in a prior proceeding and offered against a person who was not a party to the proceeding in which the statement was made is admissible if the declarant is unavailable as a witness.
Elements: (a) The declarant is unavailable per EC § 240; (b) the former testimony is offered in a civil action; and (c) the issue is such that the party to the proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to which the party has in the current proceeding. (Sweetwater Union High School Dist. v. Gilbane Building Co., 6 Cal.5th 931 (2019).)
Judgment of Conviction EC § 1300
A statement concerning any fact essential to a judgment of conviction and offered for proof in a civil action is admissible.
Elements: (a) A final judgment of conviction; (b) the conviction involved a crime punishable as a felony; and (c) the judgment is presented in a civil case to prove any fact essential to the judgment (whether or not based on a plea of nolo contendere). (Principal Life Ins. Co. v. Peterson, 156 Cal.App.4th 676 (2007).)
Spontaneous Statements EC § 1240
A spontaneous statement that describes or explains an act, condition, or event observed or perceived by the declarant is admissible.
Elements: (a) The statement must explain an event perceived by the declarant and made spontaneously while the declarant was under the stress of the excitement produced by the event; (b) the startling occurrence is sufficient to render the statement spontaneous and unreflecting; (c) the statement is made before there was an opportunity to fabricate and while reflective powers remain in abeyance; and (d) the statement relates to the facts and circumstances of the act, condition, or event preceding it. (Ungefug v. D’Ambrosia, 250 Cal.App.2d 61 (1967).)
Contemporaneous Statements EC § 1241
A statement that explains, qualifies, or makes understandable the conduct of the declarant is admissible.
Elements: (a) The statement explains, qualifies, or makes understandable a person’s conduct (e.g., accompanies vague or uncertain conduct); and (b) the statement is made while the declarant was engaged in the conduct (although immediacy is not imperative). (People v. Perez, 83 Cal.App.3d 718 (1978).)
Dying Declaration EC § 1242
A statement by a declarant concerning the cause and circumstances of the declarant’s death is admissible.
Elements: (a) The statement is based on the declarant’s personal knowledge (in contrast to mere opinion) made about the cause and circumstances of the declarant’s death; (b) the statement was made under a sense of impending death; and (c) the declarant unavailable due to the declarant’s death. (Kincaid v. Kincaid, 197 Cal.App.4th 75 (2011).)
Business Records EC § 1271
Something recorded or written in a business record concerning an act, condition, or event is admissible.
Elements: (a) The document was prepared in regular course of business; (b) the document was made at or near the time of the act, condition, or event; (c) the specific identity of the document and mode of preparation is established by testimony of the custodian of the writing or other qualified witness; and (d) sources of information and method and time of preparation indicate the document’s trustworthiness. (Conservatorship of S.A., 25 Cal.App.5th 438 (2018).)
Absence in a Business Records EC § 1272
The absence of a business record, when used to prove the non-occurrence of an act, condition, or event, is admissible.
Elements: (a) The record of the act, condition, or event was made in the regular course of the business; and (b) the absence of the record is a trustworthy indication the act or event did not occur or condition did not exist. (People v. Dickinson, 59 Cal.App.3d 314 (1976).)
Official Record EC § 1280
Something recorded or written in an official record concerning an act, condition, or event or absence of such an entry in an official record is admissible.
Elements: (a) The writing was made as a record of and to prove the occurrence of an act, condition, or event; (b) the writing was made within the scope of a public employee’s duty; (c) the writing was made at or near the time of the act, condition, or event; and (d) sources for the entries, mode and time of preparation of the writing indicate trustworthiness (the record must be based on the observation of the public employee). (Gananian v. Zolin, 33 Cal.App.4th 634 (1995).)