Opinion
A154940
12-11-2019
JIA GUO, Plaintiff and Respondent, v. JIN WU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG14745806)
This appeal stems from litigation commenced in October 2014 by plaintiff Jia Guo against defendant Jin Wu that culminated with the dissolution of their partnership in December 2018. A primary issue at the bench trial was which of them had contributed $780,332.90 in capital to the partnership. The court found that $474,606 was contributed by Guo and that the remainder was attributable to Wu. On appeal, Wu challenges only the admissibility of evidence offered by Guo to establish approximately $111,000 of his contribution. He contends the court erred in allowing Guo to read into the record, under the "past recollection recorded" exception to the hearsay rule (Evid. Code, § 1237), details contained in his bank statement regarding the transfer of the funds from him to Wu in March 2012. We find no error and shall affirm the judgment.
All statutory references are to the Evidence Code.
Discussion
The record on appeal substantially limits our recitation of the relevant background. Wu prematurely filed his notice of appeal following entry of the "phase 2" statement of decision in June 2018. A copy of this statement of decision is attached as an appendix to the notice of appeal. Following entry of judgment in December 2018, Wu filed timely an amended notice of appeal. The judgment, however, was not attached as an appendix. Rather, Wu again attached the "phase 2" statement of decision as the order from which he was appealing. Wu elected to proceed on appeal with an appendix in lieu of a clerk's transcript but never filed an appendix. Accordingly, the only document before this court is the "phase 2" statement of decision. In addition, Wu designated a record of the reporter's transcript for only three days of an apparently 25-day trial (2/7/18, 2/8/17 and 3/14/17). Accordingly, we cite only the relevant facts in our discussion of the sole issue on appeal.
Guo testified that in March 2012 he made two online transfers from his bank to Wu's bank totaling approximately $110,000. The funds were to be used for the partnership's purchase of a house in Stockton, California. Guo was unable, however, to recall the specific dates, account numbers or amounts of the transfers. Over Wu's objection, the court allowed Guo to read into the record, under the past-recollection-recorded exception to the hearsay rule, the details of the transaction from his bank statement.
Section 1237 reads: "(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement. [¶] (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party."
Wu contends the foundational requirements of section 1237 were not met. First, he argues that the writing was not made by Guo or under his direction or by some other person for the purpose of recording Guo's statement at the time it was made. But Guo testified that he directed the bank to make the transfers and his online banking system produces a record of the transfer contemporaneously with the instruction to complete the transfer. The fact that the bank statement was not printed until many years later does not alter the fact that the writing was made at the same time as the transfer.
Wu also argues that the testimony was inadmissible because the person from the bank who recorded the statement did not testify that he accurately recorded Guo's statement. But, unlike the business record exception, the past recollection recorded exception does not require testimony by a custodian of the record. Guo testified, as required by section 1237, that after completion of the transfer he verified the details of the bank statement to ensure the transfer was properly recorded.
Guo initially attempted to introduce his bank statement into evidence under the business records exception to the hearsay rule (§ 1271) but was unable to establish the foundational requirements. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2019) ¶ 8:1609, p. 8D-160 ["In some situations, writings admissible under § 1271 might also be admissible under the 'past recollection recorded' hearsay exception [citation]. But the two exceptions rest on entirely distinct foundational requirements."].)
Finally, Wu contends Guo failed to establish that he had an "insufficient present recollection" of the transfers "to enable him to testify fully and accurately." (§ 1237, subd. (a).) A witness's "memory of the subject matter of the statement must be so impaired as to render him or her unable to testify fully and accurately about the matter. [Citations.] . . . [¶] However, a complete loss of memory is not required. Quite the contrary, if the witness truly has a total memory lapse, the writing probably will not be admissible under § 1237 because the witness will be unable to testify that the statement contained in the writing was a true statement of the facts." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶ 8:1365, pp. 8D-104 to 8D-105, citing § 1237, subd. (a).) A failed attempt to refresh a witness's recollection under section 771 may be sufficient to establish the witness's insufficient present recollection for purposes of section 1237. (Wegner et al., supra, ¶ 8:1362, p. 8D-103 [" 'Past recollection recorded' comes into play when reference to the witness' prior writing does not refresh his or her recollection."] and ¶ 9:207, pp. 9-45 to 9-46 [questioning pattern to lay foundation under section 1237].) At trial, after being given the opportunity to read the bank statement, Guo was asked whether "without looking at [the document], would you remember the specific date, month, transfer, and all the information in the same exact transaction?" Guo indicated that he would not be able to do so and was therefore permitted to read aloud the details as they appeared on the bank statement. Contrary to Wu's argument, Guo's testimony was sufficient to establish his lack of sufficient present recollection of the details of the transfers to permit him to read them from the bank statement. (See People v. Cowan (2010) 50 Cal.4th 401, 465 [witness's testimony that he " 'would not have remembered any' of what he had seen at [his] brother's house . . . but for having read a transcript of his December 1984 interview with police" was sufficient to establish an insufficient present recollection for purposes of section 1237.]; Sherrell v. Kelso (1981) 116 Cal.App.3d Supp. 22, 33 [When an officer "honestly believes (usually after reading [a police] report) that he has no full and accurate memory of the incident," section 1237 authorizes him "to read into evidence the statements, otherwise admissible, directly from the written document."].)
Accordingly, there was no error in the admission of Guo's testimony regarding the March 2012 transfers.
Disposition
The judgment is affirmed. Guo is to recover his costs on appeal.
Guo's request for sanctions is denied. --------
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
TUCHER, J. /s/_________
BROWN, J.