Appellant Deborah Kincaid sued her former husband, respondent Jeffrey Kincaid, for the wrongful death of her daughter, his stepdaughter, Shannon Ellen Siebert (Shannon). Appellant alleged that Shannon committed suicide as a result of sexual abuse and torture by respondent for over 13 years. Respondent filed a motion for summary judgment, presenting evidence that the alleged acts did not occur and arguing that appellant did not offer admissible evidence creating a triable issue of material fact. The trial court sustained respondent's evidentiary objections to appellant's opposition and granted the summary judgment motion. We agree that respondent carried his initial burden of proof on summary judgment. Appellant also argues the trial court erred in ruling her evidence inadmissible. We agree in part, finding that the transcript of a recorded telephone conversation between appellant and respondent was admissible as a party admission. We find no error in any of the other evidentiary rulings. If properly admitted, evidence of the recorded conversation creates a triable issue of fact as to whether the alleged misconduct occurred. Thus, the court's order granting summary judgment is reversed.
Appellant is the mother of Shannon, who was born in January 1980. Appellant married respondent in May 1991, when Shannon was 11 years old. Appellant alleges that shortly after their marriage, respondent began torturing, molesting and raping Shannon. The torture included, but was not limited to, suffocating her with a plastic bag over her head, choking her with his hands, intentionally burning her skin with lighted cigarettes, and forcibly binding
In September 2005, Shannon disclosed the abuse and torture to her therapist, Dr. Ronald Sharpshair, then to appellant. After being encouraged to do so, Shannon reported it to law enforcement in October 2005, which led to respondent's arrest. Shannon claimed that she kept articles of clothing and bedding with respondent's semen. She also claimed there was semen on the linoleum floor of her trailer home. The articles and the trailer were examined by the County of Ventura Sheriff's Forensic Sciences Laboratory but no semen was detected. The prosecution against respondent did not go forward due to insufficient evidence.
In the early morning of February 1, 2008, Shannon's body was found on the ground outside of appellant's apartment complex. The autopsy report concluded Shannon had committed suicide by jumping off the roof of the complex. The night before, Shannon had spoken to appellant about taking her own life. She struggled with depression, had suicidal ideations, and attempted to overdose approximately a year earlier.
In October 2008, appellant brought a wrongful death and a personal injury survivor cause of action against respondent and 20 Doe defendants. Respondent is the only defendant in this appeal. For the wrongful death action, appellant alleged that respondent's torture and sexual abuse of the decedent "caused, resulted in, and were a substantial factor of, her death." Appellant sought economic, noneconomic and punitive damages. Respondent demurred to both causes of action. As to the wrongful death claim, respondent demurred on statute of limitations and causation grounds. The trial court sustained the demurrer with leave to amend as to the survivor action but overruled the demurrer to the wrongful death action.
Respondent moved for summary judgment on the wrongful death claim, which was based on hearsay evidence that he had sexually abused and
Appellant's evidence in opposition to the motion included transcripts of a tape-recorded telephone conversation between herself and respondent, an alleged suicide note written by Shannon, Shannon's October 2005 statement to police, and records of her treatment by Dr. Sharpshair. Respondent filed evidentiary objections to all of these documents. The trial court sustained the objections and granted his motion for summary judgment, finding: "[Respondent] has offered evidence that he did not commit any of the acts of which he is accused.... [¶] [Respondent] has demonstrated that there are no witnesses with personal knowledge, no physical evidence and no corroborating direct evidence to support [appellant's] allegations.... [¶] All objections to evidence are sustained. [¶] [Appellant] lacks admissible evidence sufficient to demonstrate the existence of a triable material fact. Without evidence that [respondent] raped and tortured [decedent] for years, resulting in [decedent's] suicide, [appellant] will be unable to establish her wrongful death Cause of Action." The court entered summary judgment for respondent and this timely appeal followed.
Respondent argues that appellant's action for wrongful death is barred by the statute of limitations. We do not agree.
Respondent contends that appellant stands in the shoes of the decedent, and cannot proceed with a wrongful death action if the deceased would not have prevailed on a tort action for the underlying injury had she survived. He argues that because Shannon did not bring a timely tort action for the alleged abuse or torture, her action was barred by the statute of limitations, and therefore, appellant's wrongful death claim also is barred. Respondent cites Argonaut Ins. Co. v. Superior Court (1985) 164 Cal.App.3d 320 [210 Cal.Rptr. 417](Argonaut), in support of his argument. In that case, the deceased suffered a back injury. After a hearing on a workers' compensation claim, the Workers' Compensation Appeals Board (WCAB) ordered the compensation insurance carrier to provide lifetime medical care for the deceased. Years later, she experienced increased back pain and requested surgery, but the carrier did not immediately comply. (Id. at p. 323.) She ultimately committed suicide. Her widower and children brought a wrongful death action against the carrier. The carrier demurred, arguing the matter should be decided under workers' compensation law. The demurrer was overruled and the appellate court overturned the denial, finding that had the deceased survived, she would have had to submit to the exclusive jurisdiction of the WCAB and could not have brought a tort action against the carrier. The Court of Appeal held that because the widower and children stood in the shoes of the deceased, their wrongful death action was barred for the same reason. (Id. at p. 324.)
We turn to respondent's motion for summary judgment. We review the ruling on a motion for summary judgment de novo (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074 [85 Cal.Rptr.2d 627]), viewing the evidence and inferences in the light most
A defendant seeking summary judgment meets his or her burden of proof by showing that the plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) The moving party must meet its burden by producing "affidavits, declarations, admissions," or other competent evidence. (Code Civ. Proc., § 437c, subd. (b)(1); see also College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720 [34 Cal.Rptr.2d 898, 882 P.2d 894] [neither party may rely on its own pleadings as evidence to support or oppose a motion for summary judgment].)
Here, appellant argues respondent failed to carry his initial burden of proof because he merely stated that appellant did not have admissible evidence and only provided irrelevant undisputed facts. We do not agree. Along with his showing that appellant offered no admissible evidence to prove the alleged misconduct occurred and presenting facts to support his claim that the decedent's accusations were untrustworthy, respondent also submitted affirmative evidence that he did not sexually abuse or torture the decedent: the negative DNA results and his own deposition denying the allegations. As appellant clearly cannot prevail on a wrongful death claim without proving that the alleged abuse occurred, respondent carried his initial burden of proof, thereby shifting the burden onto appellant to provide admissible evidence showing a triable issue of material fact.
Appellant next argues the court made several erroneous evidentiary rulings. Evidence submitted for or against a motion for summary judgment must be admissible if being offered at trial. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's evidentiary rulings on summary judgment for abuse of discretion. (See Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335 [115 Cal.Rptr.3d 538] ["`Although it is often said that an appellate court reviews a summary judgment motion "de novo," the
Appellant offered evidence of the abuse and torture, including a recorded telephone conversation between herself and respondent in which she confronted him with the decedent's allegations. Respondent objected to this evidence on hearsay, lack of personal knowledge, and authentication grounds. Appellant argues the court erred because the conversation constituted direct and adoptive admissions by a party opponent, and, as such, was admissible under Evidence Code sections 1220 and 1221, respectively.
On October 28, 2005, police recorded a telephone conversation between respondent and appellant.
Appellant then demanded he admit to having sex with the decedent. He responded: "I could make something up or I could tell you that I don't know and that I need help. . . . My god, don't push me into lying." Respondent then asked if the decedent would give him more details to spark his memory. Appellant again asked him if he had had sex with the decedent, to which he responded: "I must have. I must have. It sounds logical. It explains a lot. That's what I was thinking about last night. It does explain a lot." Appellant asked once more and respondent answered: "I can't say anything other than I must have." Respondent continued by stating that it was important to make it up to the decedent but doubted that "[a]fter all of that, that she would let me." He asked if he could take a lie detector test to figure out what had happened and said he wished he could remember details.
When read together, it is clear that respondent consistently reacted to the accusations in a manner that a reasonable person would not have done if the accusations were untrue. Respondent denied recollecting the incidents and refuted appellant's assertion that he was lying about not remembering the details.
Although respondent denied knowledge or memory of the abuse, he never denied the allegations themselves. When asked if he was denying the allegations, he answered: "No, I'm not denying. I'm just telling you that I don't . . . remember specifics." A jury could have found that a reasonable person, when confronted with accusations of sexual abuse of his stepdaughter over an extended period of time, would do more than simply say that he did not remember or might have mentally blocked it out.
Respondent argues his statements were not adoptive admissions because he had denied the accusations prior to the October 28 telephone call. The record shows that the day before, on October 27, police recorded a telephone conversation between respondent and Shannon in which Shannon first confronted appellant with the accusations of abuse. Respondent denied having sex with her and said he did not know what she was talking about. He denied making threats and said he could not admit to something that was not true. He concluded by stating that "anything is possible" and that if her allegations were true he needed to get help. On October 28, the police recorded another conversation between appellant and respondent, hours before the conversation we first recounted took place. In this first conversation, respondent said that he could not fathom the alleged abuse occurring and that if the accusations were true then he must have a split personality and needed help. Respondent
Respondent denied the accusations when confronted by Shannon. But, the first telephone conversation with appellant contains statements similar to those in the second; statements that are not clear denials and which could support a finding that respondent adopted appellant's accusations.
In any event, previous denials are not determinative when evaluating the admissibility of the statements at issue. Respondent cites People v. Bishop (1982) 132 Cal.App.3d 717 [183 Cal.Rptr. 414], as authority to the contrary. In that case, the defendant was charged with rape of the victim. At trial, his attorney sought to introduce a conversation between the victim and the defendant's friend that occurred the day after the alleged incident. The victim disclosed what had occurred, to which the friend stated: "`[Y]ou cannot rape the willing.'" (Id. at p. 722.) The victim did not reply. The trial court sustained the prosecutor's hearsay objection and the defendant was convicted. On appeal, the defendant argued that the court erred in not admitting the victim's silence as an adoptive admission. The appellate court disagreed, holding: "Aside from the fact adoptive admissions apply only to parties . . ., and [the victim] is not a party in this action, her silence still cannot be construed as an adoptive admission. She had already stated she had been raped; it was not necessary that she get in the last word in a futile argument with one of defendant's friends." (Ibid., citation omitted.)
Respondent argues that, similarly, he denied the accusations on multiple occasions and that restating his denials during the second conversation with appellant would have been futile in light of her persistent accusations. But he did not simply remain silent in the face of accusations. Rather, he affirmatively stated that he was not denying them, but that he could not remember the details. He ultimately admitted that the accusations must be true, though maintaining that he lacked memory of the events. Furthermore, unlike People v. Bishop, supra, 132 Cal.App.3d 717, where the adoptive admission proffered against the defendant concerned a single statement made by the defendant's friend, here, respondent had ample opportunity to respond to appellant's continuous accusations throughout a lengthy conversation. His denials are a factor for the jury to consider when determining whether respondent actually abused Shannon; his denials do not bar a finding that he adopted appellant's accusations as the truth.
There also were several affirmative statements admissible as direct admissions by a party opponent. At one point in the conversation, appellant
Because the trial court did not explain its evidentiary rulings, we also discuss respondent's personal knowledge and authentication objections. Respondent contends that he consistently denied memory or knowledge of abusing the decedent, and therefore, he lacked personal knowledge on the matter and his statements were inadmissible under section 702.
Finally, respondent objected to submission of the transcript of his statements on authentication grounds. However, in his own reply to appellant's motion for summary judgment, respondent provided the transcript for both recorded conversations between himself and appellant, as well as a signed declaration by the Ventura County Sheriff's Office's custodian of records. Respondent does not reassert the authentication objection on appeal, and we conclude that the transcript at issue was properly authenticated.
Thus, we find that the transcript is admissible and sufficient evidence to create a triable issue of material fact.
Appellant argues that her remaining evidence also is admissible under established hearsay exceptions. Here, we do not agree.
First, appellant argues that an apparent suicide note written by Shannon was admissible as a dying declaration. Following her death, a note signed by Shannon was found on the dresser in her bedroom. The note read, in relevant part: "`He Won' [¶] When on drugs it's not bad when sober I can't live with the fear (No one knows) What I go thru with my rapes memories I can't take it it's killing me I told u mom I want help to go back to DDTC u said in time I need to earn $ first, I love . . . but no one [k]nows my nightmares that asshole stole my life."
Similarly, courts have found that the presumption that one tells the truth in his or her final moments is not as applicable when it is death by suicide. The Garza court held: "The control a declarant has over her fate distinguishes a suicide note from the true dying declaration, which the courts have elevated to the level of sworn testimony in the eyes of the law. . . . A person intent on committing suicide retains the ability to draft a statement to her liking, defeating the assumed truthfulness the law attributes to true dying declarations when all cause for untruthfulness is presumed to have been eliminated by impending death. The motivation of one penning a suicide note differs from the motivation of someone unexpectedly facing imminent death." (Garza, supra, 948 So.2d at p. 95, citation omitted; see also State v. Hodge (Mo.Ct.App. 1983) 655 S.W.2d 738, 743 ["The writer of a suicide note might have a motive to implicate another other than the truth. . . . A declarant who
Appellant contends it was against Shannon's social interest to disclose that she was raped. She produces no evidence suggesting that the decedent's suicide note created a risk of hatred, ridicule, or social disgrace. Rather, such a statement may engender sympathy towards her situation which ultimately resulted in her passing. (See People v. Lawley (2002) 27 Cal.4th 102, 152, 155 [115 Cal.Rptr.2d 614, 38 P.3d 461] [prison inmate's hearsay statement that he was contracted by Aryan Brotherhood to kill victim was inadmissible when defendant presented no evidence that inmate's statement created a risk of social ridicule in prison community and when admitting to the murder may enhance inmate's reputation in prison].) Moreover, as we have stated, placing the responsibility for her situation on respondent may have also been in Shannon's self-interest, at least as she perceived it.
Finally, we consider the admissibility of the decedent's treatment records and statement to police, as appellant advances the same hearsay exceptions for both documents. Dr. Sharpshair, who was deposed on June 18, 2009, testified as to the contents of notes he took during a therapy session with the decedent on September 8, 2005. According to his notes, Shannon disclosed that respondent had raped and sexually molested her since she was 13 years old, up until two weeks prior to the therapy session. She also said that respondent showed her a gun and threatened to kill her, her mother, or himself if she told anyone about the misconduct. Shannon also filed a police report on October 12, 2005, alleging respondent sexually abused her starting from when she was 13 years old. She alleged that her last sexual contact with respondent was in August 2005 when he forced her to orally copulate him.
Appellant first argues that Dr. Sharpshair's treatment records and the decedent's police statement are admissible under the business records and public records exceptions, sections 1271 and 1280, respectively. Each document contains multiple levels of hearsay and we first determine whether her underlying statements are admissible under any established hearsay exception before evaluating the recordation of those statements. Appellant argues that Shannon's statements to police and to Dr. Sharpshair are admissible under section 1370 as statements made by a physical abuse victim describing the infliction of physical injury. We do not agree.
"At or near" the time of infliction denotes a time close to the infliction of the injury. (See People v. Quitiquit (2007) 155 Cal.App.4th 1 [65 Cal.Rptr.3d 674].) In People v. Quitiquit, the defendant and his wife (Villanueva) got into an argument on March 6, 2002. The following week, Villanueva went to the doctor complaining of numbness in her face and body. Her condition worsened and she visited the doctor several times. On April 14, she was admitted to a hospital where an MRI and X-ray showed a possible traumatic neck injury. (Id. at p. 4.) On April 24, roughly seven weeks after the injury occurred, Villanueva told her doctor and the police that the defendant had twisted her neck. (Id. at p. 5.) She subsequently died and the defendant was charged with murder and spousal abuse. Evidence of her statements was admitted and the defendant was convicted of voluntary manslaughter and inflicting great bodily injury on a spouse. (Id. at p. 7.)
On appeal, the defendant argued that Villanueva's statements were not admissible under section 1370 because they were not made "at or near" the time of the injury. Noting that no California decision had addressed the scope of the "at or near" requirement, the court held that the "plain meaning of the phrase `at or near' denotes a time close to the infliction of the injury—which in most circumstances will be within hours or days, rather than weeks or months." (People v. Quitiquit, supra, 155 Cal.App.4th at p. 9, citing Glatman v. Valverde (2006) 146 Cal.App.4th 700, 704 [53 Cal.Rptr.3d 319] [forensic report of driver's blood-alcohol level, prepared one week after his blood was tested, was not made "at or near" the time of the blood test as required by public record exception, § 1280].) The court continued: "By imposing this requirement in addition to requiring that there be other indicia of the statements' trustworthiness . . ., the Legislature evinced its intent to limit the section 1370 hearsay exception to those statements made close in time to the infliction of the injury, to provide some assurance that the statements would relate to facts fresh in the declarant's mind and reduce the risk that the statements resulted from the declarant's prevarication or coaching by third parties." (Quitiquit, at pp. 9-10, citation omitted.) Turning to the legislative history of section 1370, the court noted that earlier versions of the proposed statute did not include the "at or near" requirement but instead provided that the infliction or threat of harm not be "`remote'" from when
Although creating a time restriction, the "at or near" requirement is not equivalent to the spontaneity requirement of section 1240.
Finally, as to Dr. Sharpshair's treatment records, appellant argues that the decedent's statements were admissible as evidence of her state of mind. As explained above, the state of mind hearsay exception does not apply to statements offered to prove that the alleged abuse occurred.
The judgment following the order granting respondent's motion for summary judgment is reversed. Appellant to have her costs on appeal.
Willhite, J., and Suzukawa, J., concurred.
The defendant appealed, arguing that the victim's refusal of life support constituted an act of suicide and that his "`suicide declarations'" were not admissible as dying declarations. (People v. Adams, supra, 216 Cal.App.3d at pp. 1439-1440.) The appellate court rejected the defendant's argument, holding that "the decision to forego living an existence sustained by artificial means is not tantamount to committing suicide." (Id. at p. 1440.) The court found that simply because the victim chose to die rather than proceed on life support did not render the statements untrustworthy. Rather, the court held "[t]he crucial element in determining whether a declaration is sufficiently trustworthy for admission under the dying declaration exception to the hearsay rule is the declarant's sense of impending death—not the precipitating cause of death." (Ibid.) We interpret the court's ruling to rely on a distinction between refusing life support and suicide, especially when the victim in that case was informed that life support would only slightly delay his inevitable death. To this extent the court's statement indicates a view that its reasoning applied to suicide, we do not agree.
