Chapter 3 - §20. Exception—Business record

• Jurisdiction: United States

§20. Exception—Business record

A business record is admissible as an exception to the hearsay rule. Evid. C. §1271.

§20.1. Overview. Business records are admitted as an exception to the hearsay rule on the theory that the records have particular reliability because they are typically based on "first-hand observation" by the recordkeeper, a person "whose job it is to know the facts recorded." 7 Cal. Law Revision Comm'n Rep. (1965) p. 1242; see 1 Witkin, California Evidence (5th ed.), Hearsay §227. Thus, a business record is admitted under the business-records exception if the judge finds that "the sources of information and method and time of preparation" show its trustworthiness. Evid. C. §1271(d). Invoices, bills, and receipts are typically inadmissible hearsay to prove their contents or that services were performed unless a proper foundation is established that they fall within the exception. See Hart v. Keenan Props., Inc. (1st Dist.2018) 29 Cal.App.5th 203, 211, rev'd on other grounds, (2020) 9 Cal.5th 442; Copenbarger v. Morris Cerullo World Evangelism, Inc. (4th Dist.2018) 29 Cal.App.5th 1, 13.

§20.2. Requirements for exception. For a writing to be admissible as a business record under Evid. C. §1271, the following criteria must be met:

1. Writing is record of act, condition, or event.

(1) Generally. The writing must be made as a record of an "act, condition, or event," and it must be offered to prove the occurrence of that act, condition, or event. Evid. C. §1271; see, e.g., People v. Hovarter (2008) 44 Cal.4th 983, 1011-12 (log sheets that recorded names of truck drivers and their times of arrival and departure met requirements of business-records exception).

(2) Conclusions & opinions.

(a) Generally. Conclusions and opinions in a business record are not considered an "act, condition, or event" and thus are generally inadmissible under Evid. C. §1271. E.g., People v. Reyes (1974) 12 Cal.3d 486, 503 (psychiatric report containing psychiatrist's opinion that patient was suffering from sexual psychopathology did not qualify as business record because it was merely an opinion and not an act, condition, or event); see, e.g., People v. Campos (2d Dist.1995) 32 Cal.App.4th 304, 309 (psychiatrist's report relied on by another testifying psychiatrist was not proper business record because it contained conclusions). This limitation exists principally because a conclusion or opinion (1) may or may not be based on acts, conditions, or events observed by the person drawing the conclusion, (2) may or may not be founded on sound reason, and (3) may or may not be made by a person qualified to form it and testify to it. Reyes, 12 Cal.3d at 503. For these concerns to be satisfactorily addressed and evaluated, the person making the conclusion or opinion must be examined under oath. Id.

(b) Medical reports. Medical reports often contain statements describing a patient's medical condition as well as the doctor's medical diagnosis. Statements describing a patient's medical condition that are based on personal observation are admissible because they are founded on observable facts. Reyes, 12 Cal.3d at 503; People v. Beeler (1995) 9 Cal.4th 953, 981. For example, an autopsy report that states the cause of death (e.g., a gunshot wound to the heart) or a medical report that states the patient's condition (e.g., a broken femur) are admissible under Evid. C. §1271 as an observable fact of the person's medical condition. See Beeler, 9 Cal.4th at 980-81. But when a medical report contains a diagnosis that is based on the analysis or assessment of a person stemming from the consideration of many different factors, the diagnosis will typically be inadmissible as an opinion or conclusion. Reyes, 12 Cal.3d at 503. As such, the person making the diagnosis must be cross-examined to determine what factors prompted the conclusion and whether she was qualified to make it. Id.

2. Writing was made in regular course of business. The writing must be one that "was made in the regular course of a business." Evid. C. §1271(a). There is no requirement that the writing be of a type frequently made, as long as it is one that would be made as part of that particular organization's operation. See Evid. C. §1271. Thus, documents that are prepared for the purpose of litigation are typically not considered prepared "in the regular course of business" because they are generated for objectives completely unrelated and unconnected to the business enterprise. See People v. Sanchez (2016) 63 Cal.4th 665, 695 & n.21; People v. McVey (2d Dist.2018) 24 Cal.App.5th 405, 415; Reisman v. Los Angeles City Sch. Dist. (2d Dist.1954) 123 Cal.App.2d 493, 503; Simons, Expert Series: California Evidence Manual §2:59 (2021 ed.).

(1) Writing. The term "writing" is broadly defined to include any form of tangible expression, including audio or visual media. Evid. C. §250; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1037. It includes forms of written expression such as handwriting, typing, photostating, printing, photography...