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Lindberg v. California Dep't of Education10/31/2005
"A trial court has broad discretion in determining whether a party has established these foundational requirements." (People v. Martinez (2000) 22 Cal.4th 106, 120.)
Preliminarily, it appears that defendants have forfeited this objection by failing to take appropriate steps to preserve it below. (Eisenberg, supra, 8:249, p. 8-144.) In response to defense counsel's single-word "hearsay" objection to the letter, the court replied "[Evidence Code section] 1280, business record. Overruled." Counsel accepted this answer without comment. He did not ask for voir dire as to whether the elements of this exception to the hearsay rule were satisfied--and in the absence of such a record, we must presume that they were.
In any event, the elements of Evidence Code section 1280 appear to have been met: Cervantes was still a CDE employee when he wrote the letter, although he had been terminated from his position as deputy superintendent; the letter described acts, conditions and events that took place at or near the time he wrote it; and Cervantes, as former head of YAAES, could be deemed a reliable source for the information disclosed.
Defendants criticize the letter as "posturing" and "face-saving." While these may be good arguments to make to a jury, they are not legally cognizable reasons for excluding the letter from evidence. The fact that an official writing contains opinions and conclusions does not render it per se inadmissible; the overriding consideration is trustworthiness. (People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 20- 21.) On this record, no abuse of discretion is shown.
Lastly, since Dr. Cervantes was fully cross-examined regarding the letter and its contents, it can hardly be argued that its admission was prejudicial.
E. Opinion Testimony of Brewer, Pues and Wetzel
Jan Brewer, Sylvester Pues and Terry Wetzel were educators with extensive experience in the adult education field. Each testified that Lindberg's knowledge and experience in the field of adult education was excellent. Indeed, Brewer, who sat on the interview panel for the adults-with-disabilities consultant position, which Lindberg had been screened out of by Joan Polster, told the jury that Lindberg was a far superior candidate for the position than was Eileen Calise (the candidate the panel selected), and that he would have selected Lindberg for the job had he been given the opportunity.
Defendants contend the trial court erred in admitting the opinions of these witnesses on the asserted ground that they were unfamiliar with "the screening process or the applications that were actually submitted by Mr. Lindberg."
In overruling defendants' objection at trial, the trial judge ruled that the testimony of these witnesses was relevant to the disputed issue of whether defendants retaliated against Lindberg by refusing to hire him and selecting another candidate
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