Federal Government Document Posted on County’s Website ≠ Admission under California Law — Is Inadmissible Hearsay

From Aikens v. County of Ventura, 2011 Cal. App. Unpub. LEXIS 4986 (Cal. App. June 30, 2011):

Homeowners brought an action against local governmental entities for inverse condemnation, continuing public nuisance, and continuing dangerous condition of public property. The governmental entities are the County of Ventura (the County) and the Ventura County Watershed Protection District (the District).*** The trial court found in Homerowners' favor on the inverse condemnation cause of action.

Footnote 1. 1 "[A]n 'inverse condemnation' action may be pursued when the state or other public entity improperly has taken private property for public use without following the requisite condemnation procedures--as when the state . . . takes . . . action that effectively circumvents the constitutional requirement that just compensation be paid before private property is taken for public use." ***

Appellants contend that the trial court erroneously admitted two reports***.

Homeowners are the owners of homes built at the top of the Monte Vista Bluff in Ventura County. The Bluff is 70 to 90 feet high and is located along the eastern bank of the Ventura River. The Bluff is directly opposite the Live Oak Acres Subdivision, which lies to the west of the Ventura River. To protect Live Oak Acres from flooding, the District constructed a levee and a dike. An expert opined that these two flood control projects had "redirected the flow of the Ventura River toward the Monte Vista bluff."

In 1974 the County "rebuilt, extended and reinforced" a bridge at Santa Ana Boulevard. ***

In 2000 the District completed the Live Oak Creek Diversion Project, which was a flood control project. The project diverted surface waters that had normally flowed into the Ventura River downstream from the Monte Vista Bluff. The diversion channeled the surface waters into the Ventura River upstream from the Monte Vista Bluff, increasing river flow along the bluff.

During a storm in January 2005, Ventura River floodwaters damaged the base of the Monte Vista Bluff. ***

As to the first cause of action for inverse condemnation, the issue of liability was tried by the court without a jury. The court found that appellants' four projects (the levee, the dike, the 1974 bridge, and the Live Oak Creek diversion) had been "substantial concurring causes" of the 2005 injury to Homeowners' properties. ***

Admission of Report of Bureau of Reclamation

Appellants contend that the trial court erroneously relied on Homeowners' exhibit 94, a hydrology, hydraulics, and sedimentation study prepared in 2007 by the Denver Technical Service Center, Bureau of Reclamation, United States Department of the Interior. The purpose of the study was "to support the design and/or improvements of two levees located along the Ventura River" that were being constructed "as part of the Matilija Dam Ecosystem Restoration Project to mitigate flood impacts from the project." Appellants maintain that exhibit 94 is inadmissible hearsay. ***

The trial court received exhibit 94 and referred to the study in two footnotes of its statement of decision. The first reference is in footnote 22, where the trial court quoted as follows from page 8 of exhibit 94: "As concluded by the federal hydrology team, '[t]he 2005 channel [of the Ventura River] migrated against the east [Monte Vista] bluff along the river[.] Some erosion at the toe of the bluff was observed.'" The second reference is in footnote 24, where the court quoted as follows from page 6 of exhibit 94: "In 2007, the United States Department of the Interior, Bureau of Reclamation, recalculated flood frequencies at the Live Oak Levee at 19,800 cfs for a 20-year storm, 24,800 cfs for a 50 year storm, and 28,300 cfs for a 100 year storm." The Live Oak Levee runs along the western channel of the Ventura River opposite Monte Vista Bluff. It was one of the flood control projects constructed by the District.

We agree with appellants that the out-of-court statements referred to in footnotes 22 and 24 constitute inadmissible hearsay. We reject Homeowners' contention that, because appellants posted exhibit 94 on their website, it is admissible under the adoptive admission exception to the hearsay rule. (Evid. Code, § 1221. [“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”]) The mere posting of a document on a party's website does not manifest the party's "adoption" of the document or "his belief in its truth." (Ibid.)

We also reject Homeowners' contention that the out-of-court statements are admissible under the authorized admission exception to the hearsay rule. (Evid. Code, § 1222. [“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.”]) The Denver Technical Service Center of the Bureau of Reclamation was not "a person authorized by [appellants] to make a statement or statements for [appellants] concerning the subject matter of the statement[s]." (Id., subd. (a).)

Nor are the statements admissible under the official records exception to the hearsay rule. (Evid. Code, § 1280. [“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness”]) The statements are opinions. They are not a "record of an act, condition, or event" that "was made at or near the time of the act, condition or event." (Ibid.) Since the statements are opinions, we also reject Homeowners' contention that appellants waived any objection to the "recalculated flood frequencies at the Live Oak Levee" by expressly objecting only to "opinions" and not objecting to "historical data or factual data" in exhibit 94.

Where, as here, the trial court erroneously admitted hearsay evidence, the judgment shall not be reversed unless the error "resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (b).) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; accord, Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 591.)

The burden is on appellants to demonstrate that the trial court's error in admitting the hearsay evidence resulted in a miscarriage of justice. (Gutierrez v. G & M Oil Company, Inc. (2010) 184 Cal.App.4th 551, 566.) Appellants have failed to carry their burden.

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