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The Qualification of an Expert

California

,

United States of America

Issue

In what circumstances will an expert’s evidence be excluded due to the expert’s lack of qualifications?

Conclusion

A person is qualified to testify as an expert if they have special knowledge, skill, experience, training, or education sufficient to qualify them as an expert on the subject to which their testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including their own testimony. (Cal. Evid. Code § 720)

If a witness is testifying as an expert, their opinion testimony is limited to a subject that is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. Their opinion must be based on a matter (including their special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to them at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion. (Cal. Evid. Code § 801)

Trial courts are given considerable latitude in determining the qualifications of an expert. Their rulings on the admissibility of an expert's opinion based on their qualifications will not be disturbed on appeal unless a manifest abuse of discretion is shown. (People v. Montes, People v. Davenport, Cal. Evid. Code § 720, Lowery v. Kindred Healthcare Operating, Inc.)

Consistent with this deferential standard of review, courts have found experts to be qualified where they have enough first-hand experience assessing and interpreting the factual dispute to go beyond the experience of the common person, even if the individual does not have any particular and relevant certification or training. Nonetheless, courts have excluded testimony where an expert is qualified to opine on certain matters, but not others. For example, a doctor of physical medicine and rehabilitation was unqualified to opine on the particular processes behind how a stroke occurs. Similarly, a homicide detective was unqualified to assess clinical matters covered by an autopsy report but was qualified to address other matters related to the homicide at issue. (People v. Montes, People v. Davenport, Lowery v. Kindred Healthcare Operating, Inc., People v. Singleton, Howard Entm't, Inc. v. Kudrow, Cal. Evid. Code § 801)

Law

Cal. Evid. Code § 720 sets out when a witness will be qualified as an expert:

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

Cal. Evid. Code § 801 describes the parameters of an expert's opinion:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

In People v. Montes, 58 Cal.4th 809, 320 P.3d 729, 169 Cal.Rptr.3d 279 (Cal. 2014) ("Montes"), the California Supreme Court stated that the standard of review of a trial court's decision to admit or deny an expert's testimony based on the expert's qualifications is manifest abuse of discretion (at 331-332):

“ ‘A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.’ (Evid. Code, § 720, subd. (a).) ‘ “The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on

[169 Cal.Rptr.3d 332]

appeal unless a manifest abuse of discretion is shown.” ’ [Citation.]” (People v. Davenport (1995) 11 Cal.4th 1171, 1207, 47 Cal.Rptr.2d 800, 906 P.2d 1068.)

In that case, the trial court allowed a police sergeant to testify as an expert witness on gang activity over the objection of the defendant, who contended that the sergeant was unqualified to testify as a gang expert. The California Supreme Court affirmed the trial court's decision, holding that it was not an abuse of discretion to allow the sergeant to testify as an expert because he gained sufficient expertise regarding local gang activity during his six years policing the area (at 331-332):

At the in limine hearing, Sergeant Beard testified to having the following qualifications: He was a Beaumont police officer for six years, during which time he gained familiarity with the active street gangs in the area. He was specifically familiar with the Hispanic street gang VBR, its members, their monikers (nicknames), and their tattoos. He had undergone 20–to–30 hours of training on the identification of gang members and Hispanic youth gangs through the Department of Justice and the San Bernardino and Riverside County Sheriff's Departments.

[...]

Defendant notes that, at the time of his testimony in defendant's case, Sergeant Beard had never before qualified to testify in court as a gang expert. Defendant points to Williams, in which the officers who qualified as gang experts had more years of experience with gangs and more hours of specialized training, and had qualified as gang experts in prior trials. (Williams, supra, 16 Cal.4th at p. 195, 66 Cal.Rptr.2d 123, 940 P.2d 710.) Although Sergeant Beard's experience and training was not as extensive as that of the officers in Williams, we conclude that, given Sergeant Beard's experience, training, and specific knowledge of a gang involved in this case, the trial court did not abuse its discretion in allowing him to testify as a gang expert.

The California Supreme Court in Montes relied in part on its holding in People v. Davenport, 47 Cal.Rptr.2d 800, 11 Cal.4th 1171, 906 P.2d 1068 (Cal. 1995) ("Davenport"). In Davenport, the trial court excluded the expert opinion of a homicide detective regarding when the body of a homicide victim was impaled by a stake. The prosecution sought to admit the detective's opinions on a number of questions but moved to limit the detective's opinion as to when the victim was impaled. The detective stated in his initial police report that the victim was impaled post-mortem, but at the hearing on the admissibility of his opinion, the detective testified that he had no specific experience related to his opinion and that he came to a different conclusion as to when the victim was impaled after seeing the autopsy results. The trial court consequently excluded the detective's opinion that the victim was impaled post-mortem because he was unqualified to provide expert testimony on the question of when the victim was impaled. The defendant contended on appeal that the trial court abused its discretion in excluding the detective's opinion. The Supreme Court disagreed and affirmed the trial court's exclusion of the detective's opinion (at 1206-1207):

Defendant contends that the trial court improperly limited the testimony of Officer Ronald Veach, a former homicide investigator with the Irvine Police Department called by the prosecution. This contention is meritless.

1) Background

At trial immediately prior to Officer Veach's testimony, the prosecutor moved to limit Veach's testimony with respect to his conclusion as to whether Lingle was impaled by the stake ante mortem or post mortem. In his police report, Veach had stated that he believed Lingle was impaled post mortem. A foundational hearing was then held.

At the hearing, Veach testified that he had no medical training or training in either pathology or serology; accordingly his knowledge of causes and [11 Cal.4th 1207] time of death was limited and general in nature. He had viewed only eight corpses in the two years he had been an investigator. Veach had never, prior to Lingle, "seen a body with something inserted in the rectum." He reached the conclusion that Lingle had been impaled post mortem because there was no bleeding around the anal orifice. After the autopsy was performed, and Veach learned the results, he came to a different conclusion as to when she had been impaled.

Following this testimony, the trial court stated, "So, I see him as totally unqualified in this case to render an expert opinion on the subject to which we are talking about here. He may be an excellent homicide investigator. He may be an excellent crime scene investigator. But the court has to look at the specific question which is before the court in determining whether a person qualifies as an expert, and I don't think he does." The trial court excluded Veach's opinion that Lingle had been impaled by the stake post mortem.

2) Analysis

"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid.Code, § 720, subd. (a).) " 'The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.' " (People v. Cooper (1991) 53 Cal.3d 771, 813, 281 Cal.Rptr. 90, 809 P.2d 865.)

The trial court properly excluded Veach's expert opinion as to when Lingle was impaled. First, Veach lacked the qualifications necessary to render such an opinion. He had no medical, serology, or pathology training. He had viewed only eight corpses in the two years he had been a homicide investigator, none of which involved a similar injury. He also had only a limited understanding of the manner in which the cause and time of death is clinically determined. In sum, the trial court did not abuse its discretion in limiting Veach's expert testimony.

In Lowery v. Kindred Healthcare Operating, Inc., 49 Cal.App.5th 119, 262 Cal.Rptr.3d 663 (Cal. App. 2020), the California Court of Appeal for the First District reviewed the exclusion of a doctor's expert testimony. There, competing experts offered their opinions on whether the acts of the defendant in any way caused the plaintiff's mother's stroke. The defendant offered the testimony of a neurologist with over 30 years of experience, who included a detailed declaration explaining the specific reasoning behind his opinion. The plaintiff's opposing expert was also a doctor but was an expert in physical medicine, rehabilitation, geriatrics, and pain disorders. His testimony included only conclusory statements that did not address whether the defendant's actions could have caused the stroke. The trial court ruled that the plaintiff's expert's expertise was unrelated to the matters on which he opined and excluded his testimony, which the appellate court affirmed (at 124-25):

In Sargon, the Supreme Court repeated the well-established rule that we review a trial court’s ruling "excluding or admitting expert testimony for abuse of discretion." (Sargon, supra, 55 Cal.4th at p. 773, 149 Cal.Rptr.3d 614, 288 P.3d 1237.) The court recognized that trial courts have an obligation to "exclude unreliable evidence" but also cautioned that "due to the jury trial right, courts should not set the admission bar too high." (Id . at p. 769, 149 Cal.Rptr.3d 614, 288 P.3d 1237.) The court explained, "under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative..... [¶] But courts must also be cautious in excluding expert testimony. The trial court’s gatekeeping role does not involve choosing between competing expert opinions.... [T]he gatekeeper’s focus ‘must be solely on principles and methodology, not on the conclusions that they generate.’ " (Sargon, at pp. 771-772, 149 Cal.Rptr.3d 614, 288 P.3d 1237.)

Contrary to plaintiff’s argument, the trial court did analyze Dr. Miller’s declaration within the boundaries Sargon established. The court correctly observed that Miller failed to provide any basis for his opinions. (See Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1115, 214 Cal.Rptr.3d 449 ["The trial court may strike or dismiss an expert declaration filed in connection with a summary judgment motion when the declaration states expert opinions that are speculative [or] lack foundation."]; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123, 59 Cal.Rptr.3d 618 [" ‘An expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.’ "].)

Plaintiff suggests that "Dr. Miller’s declaration clearly states what underlying facts he relied [on] and why the underlying facts led to his conclusion" that if Ms. Goros had received TPA within the first few hours of suffering the stroke "she would have had a chance at reversing the effects of her stroke." But Miller’s brief two-page declaration provides no such explanation. The declaration states only that "his opinion is based on his experience and documented medical literature." The vague

[262 Cal.Rptr.3d 668]

reliance on "documented medical literature" is insufficient and stands in stark contrast to Adornato’s declaration which identifies the specific medical literature and the specific

[49 Cal.App.5th 125]

contents of that literature on which he relied. (San Francisco Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 964, 258 Cal.Rptr.3d 180 ["The plain language of Sargon dictates that a trial court exercise its gatekeeping function by considering the matter or information an expert actually relied on in reaching an opinion."]; Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 229, 232 Cal.Rptr.3d 733 ["Without at least some minimal basis, explanation, or reasoning, [medical expert’s] conclusions as to causation in his May declaration had no evidentiary value."].)

Moreover, plaintiff cites no evidence in the record contradicting the court’s finding that Dr. Miller did not have the education or experience to render an opinion about the cause or treatment of Ms. Goros’s stroke. This ground independently supports the exclusion of Miller’s declaration. Evidence Code section 720, subdivision (a) provides: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." In People v. Hogan (1982) 31 Cal.3d 815, 852, 183 Cal.Rptr. 817, 647 P.2d 93, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836, 281 Cal.Rptr. 90, 809 P.2d 865, the court held that "the qualifications of an expert must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient." The trial court recognized that Dr. Miller had "a great deal of expertise in the area of physical medicine, given his tenure at UCLA and his publications" but that "those types of doctors come in after [the stroke]. They’re not the ones that are issuing opinions ... on things that a neurologist would have to do." Plaintiff fails to show that Dr. Miller’s qualifications extend to the specific opinions he expressed here. Having reviewed Dr. Miller’s curriculum vitae, impressive as it may be, we find no abuse of discretion in the court’s ruling that his expertise does not relate to the matters on which he opined.

In People v. Singleton, 182 Cal.App.4th 1 (Cal. App. 2010), the defendant contended that the trial court had abused its discretion by admitting a police officer's expert opinion regarding a video recording involving the defendant's use of force during his arrest. First, the defendant argued that the officer's opinion should be excluded because his testimony about a video recording was not beyond the common experience of the jurors. The Court of Appeal for the Second District disagreed because the officer was not merely describing the recording, but was interpreting it as a police officer experienced in arresting suspects and in suspects that resist arrest. The defendant also argued that the officer was not qualified to testify as an expert in video analysis. The appellate court deferred to the trial court's discretion as to this argument because the officer had enough experience regarding the scenes in the video recording that it was not an abuse of discretion to allow his expert opinion on what took place in the recording (at 20-21):

Appellant contends that Weldon's opinions were inadmissible as expert testimony.11 We disagree. "Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is `[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) Expert opinion is not admissible if it consists of inferences and conclusions which can be

[182 Cal.App.4th 21]

drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]" (People v. Torres (1995) 33 Cal.App.4th 37, 45 [39 Cal.Rptr.2d 103], quoting Evid. Code, § 801, subd. (a).) Whether an expert should be permitted to opine on a particular subject is consigned to the trial court's discretion. (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001 [79 Cal.Rptr.3d 634].)

Appellant argues that because Weldon purported to ground his testimony on the video recording, his testimony was not beyond the common experience of the jurors. However, as explained above (see pt. A.1.b, ante), Weldon did not merely describe the video recording images, but interpreted them as an experienced police officer: he explained control techniques he saw appellant use and opined whether appellant appeared to have control of Bernal. We therefore reject appellant's contention.

Appellant also suggests that Weldon was not qualified to testify as an expert, as Weldon had resigned as a police officer in 1987 and had no expertise in video analysis. Again, we disagree. "The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.] This court may find error only if the witness `"clearly lacks qualification as an expert."' [Citation.] Whether a person qualifies as an expert in a particular case depends on the facts of that case and the witness's qualifications. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited. [Citation.]" (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 36-37 [117 Cal.Rptr.2d 738], quoting People v. Hogan (1982) 31 Cal.3d 815, 852 [183 Cal.Rptr. 817, 647 P.2d 93], disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d 865].)

Although Weldon did not claim to be a use-of-force expert, he testified that he had considerable experience with violent arrestees, was familiar with techniques for controlling arrestees, and had served as a field training officer. Because Weldon's testimony was limited to appellant's control over Bernal during the brief interval depicted in the video recording, the trial court did not err in determining that he was qualified to offer expert opinion on the subject.

In Howard Entm't, Inc. v. Kudrow, 208 Cal.App.4th 1102, 146 Cal.Rptr.3d 154 (Cal. App. 2012), a personal manager, the plaintiff, entered into an oral agreement with an actress, the defendant, whereby the plaintiff would receive a percentage of the defendant's income in exchange for personal management services. After the defendant terminated the plaintiff, he claimed he should continue to receive a percentage of income from any engagements the defendant entered into while the plaintiff provided his management services, even after the termination. The plaintiff relied upon an expert's testimony to assert that custom and usage in the industry supported his claim for post-termination compensation under the parties' oral agreement. The trial court granted the defendant's motion for summary judgment and excluded this expert testimony because the plaintiff failed to lay a foundation establishing the expert's qualifications regarding the custom of personal management services for actors and actresses (at 1115-1116):

Howard opposed Kudrow's motion by submitting the additional Bauer declaration to show an entertainment industry custom and usage that Howard contends supports his claim for post-termination compensation under the parties' oral agreement. “Usage or custom 9 may be looked to, both to explain the meaning of language and to imply terms, where no contrary intent appears from the terms of the contract.” (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 755, p. 846.) Custom and usage in the entertainment industry therefore may become part of the oral agreement between the parties to explain whether Howard was entitled to receive post-termination compensation.

Expert testimony is admissible to prove custom and usage in an industry. (Ecco–Phoenix Electric Corp. v. Howard J. White, Inc. (1969) 1 Cal.3d 266, 271, 81 Cal.Rptr. 849, 461 P.2d 33; PM Group, Inc. v. Stewart, supra, 154 Cal.App.4th at p. 63, 64 Cal.Rptr.3d 227.) But such testimony is subject to foundational challenges. For example, the lack of foundation of an expert's testimony can be as to the expert being qualified, the validity of the principles or techniques upon which the expert relied, or as to the reliability and relevance of the facts upon which the expert relied. (See Park, Trial Objections Handbook (2d ed. 2012) § 8:29, p. 8–77.)

[208 Cal.App.4th 1115]

Evidence Code section 720, subdivision (a) provides, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or [146 Cal.Rptr.3d 165]education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” “[T]he qualifications of an expert must be related to the particular subject upon which he is giving expert testimony.” (People v. Hogan (1982) 31 Cal.3d 815, 852, 183 Cal.Rptr. 817, 647 P.2d 93, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836, 281 Cal.Rptr. 90, 809 P.2d 865.) Consequently, “the field of expertise must be carefully distinguished and limited” (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37, 117 Cal.Rptr.2d 738), and “[q]ualifications on related subject matter are insufficient” (People v. Hogan, supra, 31 Cal.3d at p. 852, 183 Cal.Rptr. 817, 647 P.2d 93).

The foundation required to establish the expert's qualifications is a showing that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions involving the subject matter of the opinion. (See People v. Chavez (1985) 39 Cal.3d 823, 828–829, 218 Cal.Rptr. 49, 705 P.2d 372; 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2011) Opinion Testimony from Expert and Lay Witnesses, §§ 30.16, 30.21, pp. 668, 670.) “Whether a person qualifies as an expert in a particular case ... depends upon the facts of the case and the witness's qualifications.” (People v. Bloyd (1987) 43 Cal.3d 333, 357, 233 Cal.Rptr. 368, 729 P.2d 802.) “[T]he determinative issue in each case is whether the witness has sufficient skill or experience in the field so his testimony would be likely to assist the jury in the search for truth.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 219, 6 Cal.Rptr.2d 900.)

An expert may rely upon hearsay and other inadmissible matter in forming an opinion. (Evid. Code, § 801, subd. (b).) But that matter relied upon must “provide a reasonable basis for the particular opinion offered.” (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564, 10 Cal.Rptr.3d 34.) An expert opinion may not be based on conjectural or speculative matters. (See Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524, 3 Cal.Rptr.2d 833.) Whether the material used by an expert “is of a type on which an expert reasonably may rely ... the factors of necessity and relative reliability [should] be given strong consideration.” (1 Jefferson, Cal. Evidence Benchbook, supra, § 30.49, p. 688; see People v. Lewis (2001) 26 Cal.4th 334, 356, fn. 4, 360, 110 Cal.Rptr.2d 272, 28 P.3d 34.)

The trial court's ruling sustaining the objections to the additional Bauer declaration appears to be based on Howard's failure to lay a foundation as to Bauer's knowledge and the facts upon which he relied. We shall discuss both the expert's qualifications and the facts upon which he relied because, based on the trial court's determination, they appear intertwined.

Upon review, the Court of Appeal for the Second District vacated the grant of summary judgment in part because the trial court erred in concluding that the plaintiff's expert testimony lacked a proper foundation for the expert's qualifications. The Court of Appeal cited the expert's declaration, which included testimony regarding several decades of employment in the entertainment industry as a manager, talent agent, and entertainment executive. It also included testimony that the expert was personally party to agreements like the one at issue in this case and was familiar with other specific instances concerning the payment of personal managers after the termination of their representation. The expert did not need to demonstrate that he was a personal manager at the time the parties entered into their agreement decades prior, nor did he need to point to specific conversations he had with others in the industry at the time of the agreement. The expert's experience in the industry alone was sufficient to lay a foundation for his qualifications for him to render an expert opinion on the post-termination compensation practices at issue (at 1116-1117):

Bauer's declaration showed that he was qualified as an expert. Bauer has been in the entertainment industry from 1974 through the present as an executive in business affairs, talent agent, and personal manager. He has obtained employment for actors, directors, writers, and producers. He was president of a prominent talent agency. He has discussed extensively entertainment matters with persons in the entertainment business. He represented as a talent agent actors who were represented by personal managers. He was familiar with specific instances concerning the payment of personal managers[146 Cal.Rptr.3d 166]after termination of their representation. He discussed the matter with attorneys at a prominent entertainment law firm. He personally was a party to agreements like the one in issue here. Under these circumstances, and in the context of opposing a motion for summary judgment, Bauer has submitted the necessary facts as to his qualifications to establish a foundation upon which to render an opinion on the subject of his testimony.

That Bauer was not a personal manager in 1991—the date of the Howard–Kudrow agreement—and cannot point to specific people he talked to then is not fatal. When, for example, an expert seeks to opine regarding the meaning of a term in an industry contract “[s]o long as the witness testifies that he or she has been a member of the industry for a certain period of time and has encountered that usage of the term on several occasions by industry members, the foundation ought to be deemed adequate. Standing alone, that experience suffices.” (Imwinkelried, The Meaning of “Appropriate Validation” in Daubert v. Merrell Dow Pharmaceuticals, Inc., Interpreted in Light of the Broader Rationalist Tradition, Not the Narrow Scientific Tradition (2003) 30 Fla. St. U. L.Rev. 735, 752.)

Moreover, Bauer stated that talent agents and personal managers are treated similarly, and he had long been a talent agent. Our Supreme Court has stated that “[t]he line dividing the function of agents ... and of managers ... is often blurred and sometimes crossed.” (Marathon Entertainment, Inc. v. Blasi, supra, 42 Cal.4th at p. 980, 70 Cal.Rptr.3d 727, 174 P.3d 741; see also Lind et al., Entertainment Law 3d, Legal Concepts and Business Practices (2011) § 8.7, fn. 7.) Bauer's experience indicates a knowledge of the way those representing talent, whether as talent agents or personal managers, are paid in the entertainment industry. Also, to the extent the custom and usage existed after 1991 regarding the compensation of personal managers, that custom and usage arguably also existed in 1991 and before.

We must view the evidence and inferences therefrom in the light most favorable to the plaintiff. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 844–845, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Under this standard, we conclude the additional Bauer

[208 Cal.App.4th 1117]

declaration demonstrated, for purposes of opposing Kudrow's motion for summary judgment, that Bauer had the requisite knowledge of, or was familiar with, or was involved in a sufficient number of transactions to establish a sufficient foundation for his qualifications to opine that it was the custom and usage during the relevant period of time to pay to personal managers post-termination commissions on engagements entered into and services rendered during the representation.

Alexsei publishing date:
2022-03-24 17:08:20.610657
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