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Basco v. Tishgart6/14/2005
on states that the company-I think it is Cal Farm, whoever it is, prepared all the records, and we kept them in the course. That's not true. There's records in there from all different sources, some from the plaintiffs, some from the parties, some from the attorneys, some from Cal Farm. So on the face of that it is defective. Plus, I have the right to cross-examine the witness. . . . [ ] . . . [ ] . . . And there's multiple layers of hearsay in those documents, not just the business records exception that's been satisfied. [ ] . . . [ ] The declaration doesn't satisfy the first prong of 1271(a) as to documents not prepared by Cal Farm. So anything that's in there that was not prepared by Cal Farm the declarant can't testify about, and 1271(a) is not satisfied."
It is doubtful that appellant made the sort of specific objection required to preserve the issue for review. (Evid. Code, § 353, subd. (a).) His hearsay objections were not directed at specific documents but were scatter-shot in their generality. In any event, the letter quoted above certainly qualifies as the type of record maintained by an insurer and is therefore a non-hearsay business record.
Moreover, even if the written materials about the insurance coverage of the Farmers' Market and Casarez was hearsay, expert Moran was entitled to consult and rely upon them in formulating and stating his opinions. (Evid. Code, §§ 801, subd. (b), 802; Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 933.) Moran did so in the course of stating his opinion that appellant should have exercised greater care in preserving respondent's case file because of information that might be lost: " nd the most important is probably insurance records. [ ] . . . So you want to make sure you safeguard the files so that evidence of insurance is kept for the client's benefit. [ ] . . . [ ] For example, in this particular case, the insurance information shows that there was $300,000 in liability insurance coverage. [ ] . . . [ ] . . . Both the Farmers Market and the vendor, Casarez, were insured under the same Cal Farm policy that provided $300,000 in liability insurance coverage for bodily injury claims . . . . [ ] So those are . . . examples of things that would be in a plaintiff attorney's file when he's handling a personal injury case and would be most important to safeguard." Because the information about the insurance coverage thus came from an alternate and admissible form, any error in admitting the subpoenaed insurance documents would be harmless (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.)
V.
Appellant next argues that "even if respondent had shown that these parties were the responsible parties, there was no evidence offered that any judgment against them would have been collectible. This failure to prove this essential element of respondent's case prevents a finding for respondent against appellant."
In reply, respondent argues in her brief: "Basco's safety expert, Kimberly Hawthorne, testified that the defendants in the underlying case, California Farmers Market Association and Barbara Casarez, were negligent. Basco testified that the market was still in operation as of the time of the trial. Basco introduced written evidence that the California Farmers Market Association carried liability insurance with limits of $300,000 per occurrence. [ ] In addition to written documentation of the insurance coverage, both liability experts, Neil Moran and Kimberly Hawthorne, identified without contradiction that there was liability insurance covering the Farmers Market Association and Barbara Casarez. [ ] . . . [ ] Here, Basco introduced evidence that defendan
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